Today's decision in Vidal v. Elster unanimously upheld a federal trademark law provision that bars federal registration of any trademark that "[c]onsists of or comprises a name … identifying a particular living individual except by his written consent." The law doesn't bar people from using others' names as part of a trademark, but bars federal registration of such marks, which would provide trademark owners special protect against infringement. (The case involved plaintiff's attempt to register the mark "Trump Too Small," but the legal issue went far beyond this mark.)
The Court unanimously agreed that this was a content-based, though viewpoint-neutral, classification. But while content-based speech restrictions are presumptively unconstitutional, the Justices agreed that this law is fine.
But the Justices sharply disagreed on the rationale for this conclusion.
