Knobbe Martens partner Jonathan Menkes was quoted by Law360 in the article “‘Trump Too Small’ At The High Court: What You Need To Know,” discussing the Supreme Court granting the certiorari petition in In re Elster, which challenges the Federal Circuit’s decision not to register a trademark for the phrase, “Trump Too Small”.
In the article, Menkes discusses the potential significance of the Supreme Court’s ruling, saying that the Elster case differs from two other cases the Federal Circuit had relied on – Matal v. Tam and Iancu v. Brunetti – in that the earlier decisions involved speech or sentiments that did not identify a single living person.
Menkes says, “What is fascinating about this case is it highlights the clash between rights of publicity, the First Amendment, and the right to register a trademark, and we should expect that the Supreme Court will add clarity as to how to properly balance these competing interests.” He adds, “However, it is unclear how the Supreme Court will reconcile — or distinguish — these cases, and I suspect a lot of [intellectual property] practitioners will be following this case very closely given its far-reaching impact beyond mere registration of a trademark.”
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