Courthouse Steps Decision: Vidal v. Elster

What Are Its Implications for Trademark Law and First Amendment Free Speech Protections?

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In recent years, the Supreme Court has decided two cases in which it held that certain restrictions against registering certain kinds of marks violate the Free Speech Clause of the First Amendment. In Matal v. Tam (2017), it invalidated the Lanham Act proscription against registering marks containing terms disparaging toward a person or institution. In Icanu v. Brunetti (2019), it invalidated the Lanham Act proscription against registering marks containing scandalous or immoral terms.

The Supreme Court has now decided Vidal v. Elster, in which it adopted this question presented: “Whether the refusal to register a mark under Section 1052(c) [Lanham Act section 2(c)] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” At issue was an application to register the mark TRUMP TOO SMALL on various clothing items. Lanham Act section 2(c) prohibits registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” The Federal Circuit held that this proscription violates the Free Speech Clause as applied in this mark-registration application.

This Courthouse Steps presentation will discuss the background leading to Vidal v. Elster, review the Court's decision, and discuss its implications for trademark law and free speech.



  • Michael K. Friedland, Founding Partner, Friedland Cianfrani LLP
  • Moderator: John B. Farmer, Attorney, Leading-Edge Law Group, PLC


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.