"This history and tradition is sufficient to conclude that the names clause — a content-based, but viewpoint-neutral, trademark restriction — is compatible with the First Amendment."
The court, however, rejected that argument, noting that living individuals have some limited rights, even in the political arena, to prevent their names from being branded without their permission.
The slogan appears on the front of several T-shirts that Elster sells online for $39.99, with “Trump’s package is too small” also printed on the back.
His application was rejected by the Patent and Trademark office, which concluded that Trump’s written consent would be needed, as required under a 1946 law called the Lanham Act.
The decision maintains the longstanding “living-individual rule” under the Lanham Act, which has governed trademark registration for decades.
Take, for example, the vast array of merchandise marketed on line featuring the image and sayings of Justice Ruth Bader Ginsburg when she was alive.
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