The US Supreme Court heard oral arguments on Wednesday in a case after the US Patent Office denied a trademark involving a dick joke about Donald Trump, which they say requires explicit permission from the former President.
The plaintiff, who says his 1st Amendment rights are being violated, is 59-year-old California labor lawyer Steve Elster, a politically active Democrat. Elster began selling T-shirts with the slogan "Trump Too Small" following an exchange during a 2016 primary debate when Marco Rubio said that Trump had small hands - to which Trump replied "Look at those hands, are they small hands?" adding "And, he referred to my hands – ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee."
Stormy Daniels, who also 'heard oral arguments' regarding Trump's penis, disagrees.
Regardless, based on Wednesday's arguments, it appears that the Supreme Court looks likely to affirm a US Patent and Trademark Office (USPTO) decision that rejected the application, which was filed in 2018.
The USPTO rejected was based on the notion that people would associate the word "Trump" with the former president, which they said would require written consent as required under a 1946 law known as the Lanham Act.
Elster has argued that his free speech rights are being violated if he can't register a trademark criticizing a public figure, however the Supreme Court doesn't appear to be buying it.
Justice Neil Gorsuch noted that there is a long historical tradition of prohibitions on trademarks that reference living people, suggesting that there was no sense at the time that there was a free speech issue.
"Why not just look to the history?" he said.
Even if Elster cannot trademark the phrase, there is nothing to stop him selling the T-shirts, Justice Sonia Sotomayor pointed out, questioning whether there was any restriction on free speech in the first place. -NBC News
Earlier, the US Court of Appeals for the Federal Circuit ruled in Elster's favor, saying his 1st Amendment rights were being violated. Oddly enough, the Biden administration - which represents the USPTO, appealed to the Supreme Court.