When Freedom of Speech Becomes Unfair Competition: Vidal v. Elster and the Need to Protect § 1052(c).

Before the case of In re Elster, everyone in the United States had the right to place offensive phrases on t-shirts regarding former President Trump and sell them if they chose to do so. After the Federal Circuit's holding in Elster, no one in the nation may ever be able to put "TRUMP TOO SMALL" on clothing or else they might get sued for trademark infringement. Over the past few years, trademarks have become the subject of Supreme Court redlining: first through the elimination of the disparagement clause in § 1052(a) in Matal v. Tam and next through the immoral or scandalous clause of § 1052(a) in Iancu v. Brunetti. Denial of federal trademarks under the Lanham Act because of viewpoint has come under immense scrutiny and judicial review as a violation of the free speech clause of the First Amendment. However, this line of cases speaks to proper viewpoint discrimination jurisprudence, and the Federal Circuit's opinion in Elster--overturning the denial of the proposed word mark "TRUMP TOO SMALL" on t-shirts as a violation of § 1052(c)--misapplies the law and stretches the policy of Matal and Brunetti incorrectly against content-based restrictions. Under the Federal Circuit's logic, the proposed mark could not be denied by the USPTO because that would constitute impermissible content-based restrictions on speech that served no compelling governmental interest. Under the court's logic, the First Amendment concerns about criticizing the government outweighed the government's concerns in limiting the speech. However, the court missed a critical fact: no speech was ever silenced. The salient question in a trademark application is whether to confer federal monopoly rights to one person. In this case, the salient question is whether the entire country should have the right to put "TRUMP TOO SMALL" on t-shirts, or whether only one trademark holder should have that right. Before the Federal Circuit's holding, Trump himself could have put that phrase on a t-shirt and placed it into the stream of commerce, along with everyone else. Now, both Trump and the rest of the country might be barred from using that phrase on t-shirts--else they will create a likelihood of confusion--even though Trump owns the rights to his name, image, and likeness, and the point of the Federal Circuit's opinion was to encourage more speech, not silence the rest of the country. [ABSTRACT FROM AUTHOR]