Federal law prohibits registering trademarks that refer to specific people without their consent. The Federal Circuit ruled that this provision was unconstitutional under the First Amendment as applied to the trademark TRUMP TOO SMALL. The Supreme Court later reversed the decision and upheld the prohibition as constitutional.
This video was recorded before the Supreme Court agreed to hear the case (so the Federal Circuit's decision was still good law at the time). I discuss the Federal Circuit's ruling but focus more on the underlying tensions in trademark law that brought the case about. I argue that TRUMP TOO SMALL is a low-quality mark that no one would ever select for ordinary trademark purposes. Unfortunately, the use of trademark law to grant rights over merchandising markets creates an incentive to pursue poor trademarks, raising a potential First Amendment problem where none would have existed under traditional trademark practice. The Supreme Court did not address these issues in its opinion, and I think they remain relevant to trademark law.
I have a brief essay about the opinion available here: [ Ссылка ]
My playlist of videos explaining trademark law can be found here: [ Ссылка ]
My free trademark law casebook can be found here: [ Ссылка ]
0:00 Introduction
0:47 Background
1:31 The attempted registration
2:05 The refusal under sections 2(a) and 2(c)
3:04 The Federal Circuit's opinion
7:07 Is TRUMP TOO SMALL a good mark?
7:54 What we want from a mark
9:12 "Empty vessels" and trademark law
10:45 How the merchandising right changes things
12:55 Merchandising as an incentive for suspect marks
15:51 Opening a gap in trademark doctrine
17:00 Summary
