AIPLA Files Amicus Brief in Vidal v. Elster

Arlington, VA. August 2, 2023 - The American Intellectual Property Law Association (AIPLA) argued in an amicus brief to the Supreme Court that the U.S. Patent and Trademark Office’s (USPTO) refusal to register the trademark “Trump Too Small” violated the applicant’s First Amendment right to criticize government officials or public figures.

According to the brief, the Federal Circuit correctly held that Section 2(c) of the Lanham Act, 15 U.S.C. 1052(c), which prohibits registration of a trademark containing the name of a living individual without that individual’s consent, is unconstitutional as applied.  The brief pointed out that the Supreme Court recently confirmed in Matal v. Tam, 582 U.S. 218 (2017); Iancu v. Brunetti, 139 S. Ct. 2294 (2019), that trademarks may include expressive content protected by the First Amendment.

In this case, the brief maintained, Section 1052(c) conditioned the benefit of trademark registration on the applicant’s surrender of his First Amendment right to criticize former President Trump, and does so without any substantial government interest to justify the content-based restriction of speech.  Although the government proffered the privacy and public interests of the individual named to justify the statute, the brief argued that mere use of the Trump name does not invade privacy, and that any right of publicity interest would be outweighed by a First Amendment right to criticize a government official or public figure.

To read the full brief, please download the brief posted to the right of this page.