Trump Too Small Trademark Dispute

[TwiceHorn 32014]

So, the Supreme Court just granted cert in a trademark registration case where the applicant sought to register "Trump Too Small."

The ordinary rules of the Trademark Office are that a trademark incorporating a name (or image) of a living person (or deceased president) must have the consent of that person on record.  https://tmep.uspto.gov/RDMS/TMEP/current#/current/TMEP-1200d1e4690.html

The idea is not to intrude on that living person's NIL/privacy rights, whatever they may be, usually under state law.  This has been part of the trademark law since 1946.

The Office denied the registration, but the Federal Circuit reversed, holding that the First Amendment prevented barring the registration on such grounds.

This is kind of related to the bar against registering scandalous or obscene matter, which was essentially struck down by the Federal Circuit some years back.

Notwithstanding Trump, it's kind of an interesting issue.  Even if the Office cannot deny registration, it seems like the person "identified" should be able to oppose registration on NIL/right of privacy grounds, but this decision would seem to eliminate that as a possibility.  

[YGIFS 19457]

Even for a lawyer, that's a lotta words about somebody's tiny dick issue.

[Captainant 28421]

9 minutes ago, TwiceHorn said:

Notwithstanding Trump, it's kind of an interesting issue.  Even if the Office cannot deny registration, it seems like the person "identified" should be able to oppose registration on NIL/right of privacy grounds, but this decision would seem to eliminate that as a possibility.  

Idk if someone who was a president can claim a right of privacy over a news story that broke while he was in office with every painstaking moment and document being required by law to be recorded and retained

[Celery Man 21078]

The registrant? You guessed it, Hunter Biden.

[TwiceHorn 32014]

16 minutes ago, Captainant said:

Idk if someone who was a president can claim a right of privacy over a news story that broke while he was in office with every painstaking moment and document being required by law to be recorded and retained

Obviously, a public figure cannot.

This, however, is more in the nature of commercial speech, although with a parody/commentary aspect to it.

Without more, striking down this provision of the trademark act would make it possible for third parties to register trademarks in college athletes' NIL, for example, without their consent.

Kind of the idea here, with the statute, is that a trademark registration confers certain advantages to the owner, it does not determine whether a valid trademark exists or not.  Trademarks exist and are enforceable under the common law.  NIL trademarks have always been kind of murky and subject to a lot of ins, outs, and what-have-yous.  This is a recognition that they are best left entirely to the courts to sort out, but does permit those with consent to register.

Edited June 6, 2023 by TwiceHorn

[YGIFS 19457]

csb/ obviously you've forgotten more trademark/licensing law than I'll ever know.  But was having a conversation with Marie Osmond's nephew a couple years ago.  And he was telling me about how Nutrisystem/Weight Watchers/whatever was trying to use a likeness of her after her deal with them expired.  But like a silhouette that was obviously  her but not exactly her.  And she used as a legal precedent, the band KISS.  That actual faces and images are protected and can't be used without consent, but an obvious pretend image (cat, starman, et. al.) is a different level of protection because it's not the actual person like the Michael Myers face or Frankenstein Monster.  I'm not getting the nuance right, but this kinda shit is really interesting in this day and age because of how ubiquitous digital imagery can be slung around now, so different from when the baseline case law was put into motion.  

[TwiceHorn 32014]

6 minutes ago, YGIFS said:

csb/ obviously you've forgotten more trademark/licensing law than I'll ever know.  But was having a conversation with Marie Osmond's nephew a couple years ago.  And he was telling me about how Nutrisystem/Weight Watchers/whatever was trying to use a likeness of her after her deal with them expired.  But like a silhouette that was obviously  her but not exactly her.  And she used as a legal precedent, the band KISS.  That actual faces and images are protected and can't be used without consent, but an obvious pretend image (cat, starman, et. al.) is a different level of protection because it's not the actual person like the Michael Myers face or Frankenstein Monster.  I'm not getting the nuance right, but this kinda shit is really interesting in this day and age because of how ubiquitous digital imagery can be slung around now, so different from when the baseline case law was put into motion.  

Yeah, the issue is whether the image, or whatever it is, is recognizable as that of a living person.

There have been some interesting cases over the years relating to surnames.  Like a family surname becomes associated with a business, and then the family with the surname sells the business and is no longer associated.  Can a family member start up a similar business using their own name?  Fletcher's Corn Dogs comes to mind.  Also a case in Fort Worth relating to Haltom's Jewelers.

[elfenix 34666]

without having read anything at all i'm mind bottled that this is a free speech issue.  the government not granting him a trademark isn't the government saying he can't perform that speech, it's the government not giving him a monopoly to exclude others from performing that speech. 

[TwiceHorn 32014]

23 minutes ago, elfenix said:

without having read anything at all i'm mind bottled that this is a free speech issue.  the government not granting him a trademark isn't the government saying he can't perform that speech, it's the government not giving him a monopoly to exclude others from performing that speech. 

Yep, and it's not even a very full-blown monopoly.  It's contingent on showing that consumers are confused as to the source of the goods. And, more importantly, the "right to exclude," such as it is, exists at the common law, with our without the registration.

This particular trademark is used on shirts and hats.

And I think those trademarks tend to be bogus because no one gives a fuck where they came from, like most Texas gear, they want it for the "trademark" itself.

ETA: With respect to Texas gear, I think the most that "bootleg" or "infringing" goods do is reflect badly on the mark owner, UT.  Like all that Jerrah shit did when they were the licensee.  That isn't how trademarks are supposed to work.

Edited June 6, 2023 by TwiceHorn

[Macanudo 13265]

I'm going to register "Trump This" and "Trump That".

[ChiTownDoc 21326]

Hopefully Trump starts yelling about this being a hubbub about Meatball’s height and Meatball correctly points out it’s about Trump’s tiny mushroom dick.  Have at it, assholes.  

[crash_davis 23465]

I'm going to start printing and selling "TTs" stickers. 

[Mole 4338]

I don’t know anything about the law, but it seems like great marketing for the shirts.

[YGIFS 19457]

2 minutes ago, Mole said:

I don’t know anything about the law, but it seems like great marketing for the shirts.

That's okay, neither do his lawyers.  

I can't believe there can't be any DT posts about his many indictments, but an open and free discussion about his complete lack of genital size is totally fine.  

What a time to be alive.  And you know it's small because Stormy Daniels literally did a whole series of porn scenes with tiny dicked men as like a fetish niche and she still felt like his was unusually small.  Or so a small-dicked man explained to me   

[ChiTownDoc 21326]

28 minutes ago, YGIFS said:

 Or so a small-dicked man explained to me   

Well, you do claim to be a Republican operative…

[YGIFS 19457]

I never claimed that.  I just work in the shadows to alleviate regulatory concerns for a few private sector enterprises.  What I learn along the way is the cherry on top.  You cannot do business in the fields I do business in in the State of Texas and not rub against Republicans.  It's not humblebrag.  I don't understand how somebody between 18-88 in the City of Austin can live here without even accidentally running into people in politics, especially Republican politics.  You'd have to have a mental disorder more serious than mine to accomplish that.   

As I tell my students in business school.  There is operational due diligence within a systemic framework.  Then there is my formula.  You develop a network.  You then meet up with those people, you pump them full of booze, you ask them open-ended questions, and then you shut the fuck up.  People are dying to tell you what they know.  Absolutely doubled-over with glee to tell you what they know about their jobs, their bosses, their bosses boss, their organization, etc.  I didn't learn that until I was about in my late 30's but it was a valuable lesson.  I am no Republican.  But holy shit do those guys give up their gossip like young Democrats at a Spin Doctors show.  It's not even really fair at this point.  The sad part though is most of them know that they're doing is just dead to rights wrong.  But they're doing it anyway.  Because it pays.  Because it's easy.  Because the expression on the stupid's faces helps them sleep at night.  

[Celery Man 21078]

3 hours ago, YGIFS said:

 But was having a conversation with Marie Osmond's nephew a couple years ago.  And he was telling me 

i had a similar conversation with Carrot Top's sister in law just last week

Edited June 6, 2023 by Celery Man

[YGIFS 19457]

How is Barbara doing by the way?  

[JBJ 3782]

 

On 6/6/2023 at 10:01 AM, TwiceHorn said:

Yeah, the issue is whether the image, or whatever it is, is recognizable as that of a living person.

There have been some interesting cases over the years relating to surnames.  Like a family surname becomes associated with a business, and then the family with the surname sells the business and is no longer associated.  Can a family member start up a similar business using their own name?  Fletcher's Corn Dogs comes to mind.  Also a case in Fort Worth relating to Haltom's Jewelers.

Generally, you can trademark something with a name but can't enforce that trademark against someone who just happens to share the same name.  One can always use their own personal name regardless.

But this trademark is attempting this with a specific person in mind, so this immediately goes to NIL and the right to publicity.  Doesn't seem like it would be allowed for the same reason one wouldn't be able to trademark Ryan Reynold's Rum.

Edited June 7, 2023 by JBJ

[Beau Vine 55844]

On 6/6/2023 at 11:57 AM, Celery Man said:

i had a similar conversation with Carrot Top's sister in law just last week

username checks out.