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What is...the Names Clause?


Trump Too Small shirts are shown.

This is the fifth and final trademark case I will be discussing as part of my 2024 case law wrap-up.


In Vidal v. Elster, the issues centered around the Trump too small trademark application. Particularly, questions around limits on free speech and the 1st Amendment were raised but also dealt with a trademark in the name of someone else.


In 2016, Elster filed application for trump too small. The Examiner rejected the applications based on the Names Clause. The Names Clause states that one cannot file a trademark application that identifies a particular living individual except with their written consent.


In 202, the TTAB affirmed. In 2022, the CAFC found that the Names Clause violates the 1st amendment. It said that it is a viewpoint-neutral, content-based restriction on speech subject to at least intermediate scrutiny and the government could not satisfy even intermediate scrutiny because the Names Clause does not advantage any substantial government interest.


In 2024, the Supreme Court took up the case. There, the Court held that the Names Clause does not violate 1st amendment. It stated that viewpoint-based trademarks do violate 1st amendment (e.g., Tam, Brunetti), but viewpoint-neutral, content-based trademarks (like this one) but content based the question is does heightened scrutiny apply?


The Court stated that Trademarks have always been content-based and have existed alongside the 1st amendment. Since trademarks indicate ownership and are a form of source identification, they touch on the content of a mark from whom the product came and policing trademarks so as to prevent confusion over the source of goods requires looking into a mark's content. The clarified that this is the nature of trademark regulation and in the longstanding coexistence of trademark regulation with the 1st amendment it need not be evaluated under heightened scrutiny. The Court was clear that this is a narrow ruling – applying to the Names Clause for the reasons of good will etc. This was not to be used as a comprehensive framework for judging whether all content-based, viewpoint-neutral trademark restrictions are constitutional.





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