Today the Supreme Court reversed the Federal Circuit’s holding in Vidal v. Elster, a trademark case. The Federal Circuit had concluded that the Lanham Act’s prohibition on registering marks that consist of or comprise a name identifying a particular living individual without that person’s consent violates the First Amendment. The Supreme Court disagreed. In an opinion authored by Justice Thomas, the Court decided that history and tradition establish that the provision in question does not violate the First Amendment. Here is the introduction and conclusion of majority opinion. Next week we plan to post a full opinion summary.
Steve Elster sought to register the trademark “Trump too small.” But, the Patent and Trademark Office (PTO) refused to register the mark because the Lanham Act prohibits registration of a trademark that “[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.” 60 Stat. 428, 15 U. S. C. §1052(c). Elster contends that this prohibition violates his First Amendment right to free speech. We hold that it does not.
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Our decision today is narrow. We do not set forth a comprehensive framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional. Nor do we suggest that an equivalent history and tradition is required to uphold every content-based trademark restriction. We hold only that history and tradition establish that the particular restriction before us, the names clause in §1052(c), does not violate the First Amendment. Although an occasion may arise when history and tradition cannot alone answer whether a trademark restriction violates the First Amendment, that occasion is not today. In a future case, we can address the “distinct question” whether “a viewpoint-neutral, content-based trademark restriction” is constitutional without “such a historical pedigree.” Post, at 1 (opinion of KAVANAUGH, J.). The judgment of the Court of Appeals is Reversed.