The Supreme Court rejects Trump’s “too small” trademark application citing an offensive joke.

The court considered a lawyer’s petition to register a term that is used on T-shirts as a result of a crude joke Sen. Marco Rubio made during the 2016 GOP primary regarding the size of Trump’s hands.

A California attorney’s attempt to trademark the term “Trump too small,” which alludes to a vulgar joke about the former president Donald Trump, was rejected by the Supreme Court on Thursday.

The U.S. Patent and Trademark Office won the case when the court unanimously decided to reject Steve Elster’s application. By doing this, the court overturned a decision made by the U.S. Court of Appeals for the Federal Circuit.

Elster promised to keep selling T-shirts with the slogan even without the trademark, calling the decision “disappointing but not unexpected” in an email.

The court’s ruling, signed by Justice Clarence Thomas, stated that the First Amendment of the Constitution is not violated by prohibiting anyone from trademarking specific names.

The relevant legislation “is consistent with common-law practice concerning name trademarking.” We don’t find any cause to break with this long-standing custom that upholds the prohibition on using someone else’s name in a trademark,” Thomas wrote.

During the 2016 presidential campaign, Sen. Marco Rubio, R-Fla., made a vulgar joke about Trump, which is referenced in the phrase “Trump too small.” Regarding his remarks on Trump’s little hands, Rubio added a joke, saying, “And you know what they say about guys with small hands.”

Elster, a progressive activist and employment lawyer, applied to the trademark office in 2018 to register the phrase “Trump too small,” which is a double-entendre that suggests a similarly little penis. Elster designed a T-shirt with the slogan on the front and the words “Trump’s package is too small” on the back.

In his application, Elster expressed he want to disseminate the idea that “some features of President Trump and his policies are diminutive.”

However, the trademark office turned down his application, citing the public’s natural tendency to immediately identify the name “Trump” with the outgoing president. The staff came to the conclusion that Trump’s formal consent would be necessary under established law.

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