House Tells Law360 that Recent SCOTUS Trademark Decision Leaves Questions

Intellectual Property partner Theresa House was quoted in the recent Law360 article, “'Trump Too Small' Opinion Leaves Some Justices, Attys Vexed.” The article discusses the U.S. Supreme Court’s recent decision denying a California attorney’s application to register “Trump Too Small” as a trademark for use on t-shirts and hats. The nine justices unanimously ruled that denying the application was not a free speech violation.

House told Law360 that the recent decision could lead to two possible outcomes, one involving rights of publicity, an area of law that the Supreme Court hasn’t issued an opinion on in quite some time. "I think the court's emphasis here on how important it is historically that individuals are able to get the commercial benefit of the goodwill that's associated with their name and reputation is an analysis that could inform a future challenge to the constitutionality of right of publicity claims," she said.

Another “potentially concerning” outcome of the decision is a reference to the historical coexistence of trademark law with the First Amendment, with trademark law making content-based distinctions, House said. "If you're looking to justify government restrictions on speech, and the evidence that you look at to justify government restrictions on speech are 'what historically has the government been allowed to restrict,' you're going to find a lot of speech was restricted at the state level for generations," she said.

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