In a recent Supreme Court decision, the Court ruled that the Lanham Act’s “names clause,” which prohibits the registration of trademarks that include the name of a living person without their consent, does not violate the First Amendment. This case, Vidal v. Elster, originated when Mr. Elster sought a registration for the trademark “TRUMP TOO SMALL” for use on shirts and hats. The U.S. Patent and Trademark Office (USPTO) refused the registration based on the names clause, prompting Elster to bring a constitutional challenge, arguing that the refusal infringed on his free speech rights. After the Federal Circuit reversed the USPTO’s refusal, the Supreme Court specifically analyzed the constitutionality of the names clause, finding it constitutional as a permissible content-based, but viewpoint-neutral restriction.

The Court explained that trademark laws have historically included “content-based” restrictions to prevent consumer confusion and protect an individual’s name (or trademark) from unauthorized use that could tarnish it. These laws were characterized by the notion that individuals should be able control the use of their names and prevent others from exploiting their identity without permission, thereby protecting their reputation and the authenticity of their personal brand.

In its analysis, the Court emphasized that while the names clause is content-based because it pertains to specific types of speech (names), it is not “viewpoint discriminatory.” This means the clause does not favor nor disfavor any particular opinion nor perspective but simply regulates the use of names to maintain clear and honest identification in the marketplace. For example, the Court noted that even proposed marks like “WELCOME PRESIDENT BIDEN, “I STAND FOR TRUMP” and “OBAMA PAJAMA” were each refused registration by the USPTO because they all purported to use another’s name without consent, not because of the viewpoint conveyed. 

As such, the decision underscores that permissible content-based restrictions in trademark law have coexisted with First Amendment principles since the inception of trademark protection, highlighting the unique nature of trademark law in balancing free speech with consumer protection considerations and the preservation of protectable individual rights.