(Bloomberg) -- The US Supreme Court ruled against a man who said he has a First Amendment right to seek federal trademark protection for the mocking phrase “Trump too small.”

The high court said the US government didn’t violate Steve Elster’s constitutional rights when it refused to let him place the phrase on a federal trademark registry. Elster can still use the phrase on T-shirts insulting former President Donald Trump, but the ruling means he won’t get exclusive rights to it.

Although the outcome was unanimous, the justices divided sharply in their legal reasoning. The decision upheld a decades-old legal provision that bars registration of trademarks that identify a living person without their consent.  

Writing the court’s lead opinion, Justice Clarence Thomas said the restriction squared with the “history and tradition” of US trademark law.

“Our courts have long recognized that trademarks containing names may be restricted,” Thomas wrote on behalf of five conservative justices. He said the court “need look no further in this case.”

The court’s three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — faulted Thomas for focusing on history rather than relying on the court’s First Amendment precedents. The court has taken a similar history-based approach in other areas of constitutional law, including gun rights.

“I am reluctant to go further down this precipice of looking for questionable historical analogues to resolve the constitutionality of Congress’s legislation,” Sotomayor wrote for the group. 

Another conservative, Justice Amy Coney Barrett, also faulted the court’s reliance on history as the exclusive means of deciding whether the provision is constitutional. 

“Tradition is not an end in itself — and I fear that the court uses it that way here,” Barrett wrote. She said trademark restrictions, “whether new or old, are permissible so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification.”

Trump’s Hands

Trump, who is campaigning to return to the White House in the November presidential election, wasn’t involved in the suit. The disputed phrase alludes to a discussion during a 2016 Republican presidential debate over the size of then-candidate Trump’s hands — and, by implication, his manhood.

Elster argued that in practice the restriction amounted to unconstitutional viewpoint discrimination because getting such consent from an individual is easier when a phrase “flatters rather than mocks a subject.” 

Elster’s lawyer, Jonathan E. Taylor of Gupta Wessler LLP, didn’t immediately respond to a message seeking comment.

A federal appeals court had ruled that the disputed provision violates the First Amendment when the trademark includes criticism of a government official or public figure. The high court reversed that finding.

Federal registration gives trademark owners protections on top of those they already have under state law. Registration can confer exclusive rights in locations where no one was already using the name or image, help owners win lawsuits and put would-be competitors on notice that a trademark is legally protected.

The Justice Department backed the decision by the US Patent and Trademark Office. That put President Joe Biden’s administration in the unusual position of arguing against an effort to belittle his likely reelection opponent.

Elster filed his registration application with the US Patent and Trademark Office in 2018, while Trump was still president. The office rejected the application in 2019, and the Biden administration eventually inherited the legal fight.

The case is Vidal v. Elster, 22-704. 

(Updates with excerpts from Sotomayor, Barrett opinions.)

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