(Slip Opinion) OCTOBER TERM, 2023 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

VIDAL, UNDER SECRETARY OF COMMERCE FOR 

INTELLECTUAL PROPERTY AND DIRECTOR, 

UNITED STATES PATENT AND TRADEMARK OFFICE 

v. ELSTER 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FEDERAL CIRCUIT 

No. 22–704. Argued November 1, 2023—Decided June 13, 2024 

Drawing on a 2016 Presidential primary debate exchange between thencandidate Donald Trump and Senator Marco Rubio, respondent Steve 

Elster sought to federally register the trademark “Trump too small” to

use on shirts and hats. An examiner from the Patent and Trademark 

Office refused registration based on the “names clause,” a Lanham Act 

prohibition on the registration of a mark that “[c]onsists of or comprises a name . . . identifying a particular living individual except by 

his written consent,” 15 U. S. C. §1052(c). The Trademark Trial and 

Appeal Board affirmed, rejecting Elster’s argument that the names 

clause violates his First Amendment right to free speech. The Federal 

Circuit reversed. 

Held: The Lanham Act’s names clause does not violate the First Amendment. Pp. 3–22.

(a) When enforcing the First Amendment’s prohibition against 

abridging freedom of speech, this Court “distinguish[es] between content-based and content-neutral regulations of speech.” National Institute of Family and Life Advocates v. Becerra, 585 U. S. 755, 766. A 

content-based regulation “target[s] speech based on its communicative

content,” Reed v. Town of Gilbert, 576 U. S. 155, 163, and is “ ‘presumptively unconstitutional,’ ” National Institute of Family and Life Advocates, 585 U. S., at 766. Viewpoint discrimination is a particularly

“egregious form of content discrimination” that targets not merely a 

subject matter “but particular views taken by speakers on the subject.” 

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829. 
 

 

 

2 VIDAL v. ELSTER 

Syllabus 

This Court has twice concluded that trademark restrictions that discriminate based on viewpoint violate the First Amendment. See Matal 

v. Tam, 582 U. S. 218; Iancu v. Brunetti, 588 U. S. 388. 

Because the names clause does not single out a trademark “based on 

the specific motivating ideology or the opinion or perspective of the

speaker,” Reed, 576 U. S., at 168, it does not facially discriminate 

against any viewpoint. But a law that does not facially discriminate

based on viewpoint may still be found to discriminate based on viewpoint in its practical operation. See Sorrell v. IMS Health Inc., 564 

U. S. 552, 565. Elster suggests that is the case here because obtaining

consent for a trademark under the names clause is easier if it flatters 

rather than mocks a subject. But there are many reasons why a person 

may wish to withhold consent to register a trademark bearing his 

name. 

Although the names clause is not viewpoint based, it is content 

based because “it applies to particular speech because of the topic discussed or the idea or message expressed,” Reed, 576 U. S., at 163—i.e., 

it turns on whether the proposed trademark contains a person’s name. 

Thus, the Court confronts a situation not addressed in Tam and Brunetti. Pp. 3–6.

(b) Although a content-based regulation of speech is presumptively 

unconstitutional, this Court has not decided whether heightened scrutiny extends to a content-based—but viewpoint-neutral—trademark 

restriction. Several features of trademark counsel against a per se rule 

of applying heightened scrutiny in such cases. Most importantly, 

trademark rights have always coexisted with the First Amendment, 

and the inherently content-based nature of trademark law has never 

been a cause for constitutional concern. 

This country has recognized trademark rights since the founding.

Much of early American trademark law came by way of English law, 

where the protection of trademarks was an inherently content-based 

endeavor. For most of the 18th and 19th centuries, trademark law fell 

largely within the “province of the States,” Tam, 582 U. S., at 224, and 

went largely unrecorded. The first reported decisions in state and federal courts revolved around a trademark’s content. See Thomson v. 

Winchester, 36 Mass. 214, 216; Taylor v. Carpenter, 3 Story 458 (D. 

Mass.). And as recorded trademark law began to take off in the last 

decades of the 19th century, its established content-based nature continued. In 1870, Congress enacted the first federal trademark law, 

containing prohibitions on what could be protected as a trademark. It 

restricted a trademark based upon its content. And as trademark disputes increased, courts continued to assess trademarks based on their 

content. The content-based nature of trademark law did not change 
 

Cite as: 602 U. S. ____ (2024) 3 

Syllabus 

when Congress enacted the Lanham Act in 1946. The Act’s comprehensive system for federal registration of trademarks continues to distinguish based on a mark’s content. This history demonstrates that 

restrictions on trademarks have always turned on a mark’s content 

and have existed harmoniously alongside the First Amendment from 

the beginning. That relationship suggests that heightened scrutiny 

need not always apply in this unique context. 

The content-based nature of trademark protection is compelled by

the historical rationales of trademark law—to prohibit confusion by 

identifying the ownership and source of goods. Indicating ownership 

and the manufacturing source touch on the content of the mark, i.e., 

from whom the product came. And policing trademarks so as to prevent confusion over the source of goods requires looking to the mark’s 

content. Because of the uniquely content-based nature of trademark 

regulation and the longstanding coexistence of trademark regulation 

with the First Amendment, a solely content-based restriction of trademark registration need not be evaluated under heightened scrutiny. 

R. A. V. v. St. Paul, 505 U. S. 377, 387. Pp. 6–12.

(c) The history and tradition of restricting trademarks containing 

names is sufficient to conclude that the names clause is compatible 

with the First Amendment. Pp. 12–19. 

(1) Restrictions on trademarking names have historically been 

grounded in the notion that a person has ownership over his own 

name, and that he may not be excluded from using that name by another’s trademark. See Brown Chemical Co. v. Meyer, 139 U. S. 540, 

544. The common law prevented a person from trademarking any 

name—even his own—by itself. It did, however, allow a person to obtain a trademark containing his own name, provided that he could not 

use the mark containing his name to the exclusion of a person with the 

same name. The common-law approach thus protected only a person’s

right to use his own name, an understanding that was carried over 

into federal statutory law and included in the names clause. The Court 

finds no evidence that the common law afforded protection to a person 

seeking a trademark of another living person’s name. This commonlaw understanding is reflected in federal statutory law, and its requirement that a trademark contain more than merely a name remains largely intact. See §1052(e)(4). It is thus unsurprising that the 

Lanham Act included the names clause. 

The restriction on trademarking names also reflects trademark 

law’s historical rationale of identifying the source of goods and thus 

ensuring that consumers know the source of a product and can evaluate it based upon the manufacturer’s reputation and goodwill. Moreover, the clause respects the established connection between a trademark and its protection of the markholder’s reputation. This Court 
 

 

4 VIDAL v. ELSTER 

Syllabus 

has long recognized that a trademark protects the markholder’s reputation, and the connection is even stronger when the mark contains a 

person’s name. 

Applying these principles, the Court has also recognized that a party

has no First Amendment right to piggyback off the goodwill another 

entity has built in its name. See San Francisco Arts & Athletics, Inc. 

v. United States Olympic Comm., 483 U. S. 522, 528. By protecting a 

person’s use of his name, the names clause “secur[es] to the producer 

the benefits of [his] good reputation.” Park ’N Fly, Inc. v. Dollar Park 

& Fly, Inc., 469 U. S. 189, 198. Pp. 12–19.

(2) A tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that 

tradition. The names clause reflects the common-law tradition by prohibiting a person from obtaining a trademark of another living person’s name without consent, thereby protecting the other’s reputation 

and goodwill. A firm grounding in traditional trademark law is sufficient to justify the content-based trademark restriction here, but a 

case presenting a content-based trademark restriction without a historical analog may require a different approach. In this case, the Court 

sees no reason to disturb this longstanding tradition, which supports

the restriction of the use of another’s name in a trademark. P. 19–20. 

(d) This decision is narrow. It does not set forth a comprehensive 

framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional. Nor does it suggest that 

an equivalent history and tradition is required to uphold every content-based trademark restriction. The Court holds only that history 

and tradition establish that the particular restriction here, the names

clause in §1052(c), does not violate the First Amendment. P. 22. 

26 F. 4th 1328, reversed. 

THOMAS, J., announced the judgment of the Court and delivered the 

opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., 

joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all 

but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, 

J., filed an opinion concurring in part, in which ROBERTS, C. J., joined. 

BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., 

joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in 

which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J., filed an 

opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., 

joined. 
 

_________________ 

_________________ 

Cite as: 602 U. S. ____ (2024) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

SUPREME COURT OF THE UNITED STATES 

No. 22–704 

KATHERINE K. VIDAL, UNDER SECRETARY OF 

COMMERCE FOR INTELLECTUAL PROPERTY 

AND DIRECTOR, UNITED STATES PATENT 

AND TRADEMARK OFFICE, PETITIONER 

v. STEVE ELSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT 

[June 13, 2024] 

JUSTICE THOMAS announced the judgment of the Court

and delivered the opinion of the Court with respect to Parts

I, II, and IV, and an opinion with respect to Part III, in 

which JUSTICE ALITO and JUSTICE GORSUCH join.* 

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. 

I 

A trademark is “a symbol or a device to distinguish the

goods or property made or sold by the person whose mark it 

is, to the exclusion of use by all other persons.” Trade-Mark 

—————— 

*JUSTICE BARRETT joins Parts I, II–A, and II–B of this opinion. 
 

2 VIDAL v. ELSTER 

Opinion of the Court 

Cases, 100 U. S. 82, 92 (1879); see also §1127. As we have 

explained, “[t]he principle underlying trademark protection

is that distinctive marks—words, names, symbols, and the

like—can help distinguish a particular artisan’s goods from

those of others.” B&B Hardware, Inc. v. Hargis Industries, 

Inc., 575 U. S. 138, 142 (2015). So “[o]ne who first uses a

distinct mark in commerce thus acquires rights to that 

mark,” which “include preventing others from using the 

mark.” Ibid. 

Trademark rights are primarily a matter of state law, but 

an owner can obtain important rights through federal registration. The Lanham Act creates a federal trademarkregistration system administered by the PTO. Federal 

“[r]egistration of a mark is not mandatory,” and “[t]he

owner of an unregistered mark may still use it in commerce 

and enforce it against infringers.” Iancu v. Brunetti, 588 

U. S. 388, 391 (2019). Federal registration, however, “confers important legal rights and benefits.” B&B Hardware, 

575 U. S., at 142 (internal quotation marks omitted). For 

example, a registrant may rely on registration in litigation 

as prima facie evidence of his exclusive right to use the

mark. §1115(a). And, registration provides nationwide

constructive notice of the registrant’s claim of ownership of 

the mark. §1072.

Only marks that meet certain criteria are federally registerable. Among other criteria, the Lanham Act contains

what we will call the “names clause”—a prohibition on the

registration of a mark that “[c]onsists of or comprises a 

name . . . identifying a particular living individual except 

by his written consent.” §1052(c). The names clause excludes from registration “not only full names but also surnames, shortened names, and nicknames, so long as the 

name does in fact identify a particular living individual.” 2 

J. McCarthy, Trademarks and Unfair Competition §13:37,

p. 31 (5th ed. 2024) (McCarthy).

Steve Elster sought to register the trademark “Trump too 
Cite as: 602 U. S. ____ (2024) 3 

Opinion of the Court 

small,” accompanied by an illustration of a hand gesture, to 

use on shirts and hats. The mark draws on an exchange

between then-candidate Donald Trump and Senator Marco 

Rubio during a 2016 Presidential primary debate. 

The PTO examiner refused registration under the names

clause because the mark used President Trump’s name 

without his consent. The Trademark Trial and Appeal

Board affirmed, and it also rejected Elster’s argument that 

the names clause violates his First Amendment right to free

speech.1 The Federal Circuit reversed, holding that the

names clause violated the First Amendment. In re Elster, 

26 F. 4th 1328 (CA Fed. 2022). The court first concluded 

that the names clause is a viewpoint-neutral, content-based 

restriction on speech subject to at least intermediate scrutiny. See id., at 1331, 1333–1334. It next concluded that 

the Government could not satisfy even intermediate scrutiny because the names clause does not advance any substantial governmental interest. See id., at 1339. 

We granted certiorari to resolve whether the Lanham 

Act’s names clause violates the First Amendment. 598 

U. S. ___ (2023). 

II 

A 

The First Amendment provides that “Congress shall 

make no law . . . abridging the freedom of speech.” In general, we have held that the First Amendment prohibits the

Government from restricting or burdening “expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 

564, 573 (2002) (internal quotation marks omitted). “When 

—————— 1The Board declined to reach the PTO examiner’s alternative ground

for refusing registration—that Elster’s mark “falsely suggest[s] a connection with persons, living or dead.” 15 U. S. C. §1052(a). We focus only

on the names clause and express no opinion about whether Elster’s mark

fails to meet other requirements for federal registration. 
 

4 VIDAL v. ELSTER 

Opinion of the Court 

enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of 

speech.” National Institute of Family and Life Advocates v. 

Becerra, 585 U. S. 755, 766 (2018). A content-based regulation “target[s] speech based on its communicative content,”

restricting discussion of a subject matter or topic. Reed v. 

Town of Gilbert, 576 U. S. 155, 163 (2015). “As a general

matter,” a content-based regulation is “‘presumptively unconstitutional and may be justified only if the government

proves that [it is] narrowly tailored to serve compelling 

state interests.’” National Institute of Family and Life Advocates, 585 U. S., at 766. Our precedents distinguish further a particularly “egregious form of content discrimination”—viewpoint discrimination. Rosenberger v. Rector and 

Visitors of Univ. of Va., 515 U. S. 819, 829 (1995). A 

viewpoint-based regulation targets not merely a subject

matter, “but particular views taken by speakers on a subject.” Ibid. It is also generally subject to heightened scrutiny, though viewpoint discrimination’s “violation of the

First Amendment is . . . more blatant.” Ibid. Because our 

precedents dictate that these distinctions inform our assessment under the First Amendment, we start with them 

to evaluate the names clause. 

In the trademark context, we have twice concluded that 

trademark restrictions that discriminate based on viewpoint violate the First Amendment. In Matal v. Tam, 582 

U. S. 218, 223 (2017), we held that the Lanham Act’s bar on

disparaging trademarks violated the First Amendment. All 

Justices in Tam agreed that this bar was viewpoint based 

because it prohibited trademarks based only on one viewpoint: “[g]iving offense.” Id., at 243 (plurality opinion); see 

also id., at 248–249 (Kennedy, J., concurring in part and

concurring in judgment). And, in Brunetti, we held that the 

Lanham Act’s bar on trademarks containing immoral or 

scandalous matter likewise violated the First Amendment. 

588 U. S., at 390. We concluded that the bar was viewpoint 
 

Cite as: 602 U. S. ____ (2024) 5 

Opinion of the Court 

based because it prohibited trademarks based only on one 

viewpoint, immoral or scandalous matter, while permitting

trademarks based on other viewpoints. Id., at 393–394. 

The names clause does not facially discriminate against 

any viewpoint. No matter the message a registrant wants

to convey, the names clause prohibits marks that use another person’s name without consent. It does not matter 

“whether the use of [the] name is flattering, critical or neutral.” 2 McCarthy §13:37.50. The Government is thus not 

singling out a trademark “based on the specific motivating

ideology or the opinion or perspective of the speaker.” Reed, 

576 U. S., at 168 (internal quotation marks omitted); accord, Brunetti, 588 U. S., at 394 (explaining that a viewpointbased trademark law “distinguishes between two opposed 

sets of ideas”). 

Elster suggests that the names clause verges on viewpoint discrimination in practice. According to Elster, it is 

easier to obtain consent for a trademark that flatters a person rather than mocks him. This Court has found that a 

law can discriminate based on viewpoint in its practical operation. See Sorrell v. IMS Health Inc., 564 U. S. 552, 565 

(2011); R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). But, 

here, there are many reasons why a person may be unable

to secure another’s consent to register a trademark bearing

his name. Even when the trademark’s message is neutral 

or complimentary, a person may withhold consent to avoid

any association with the goods, or to prevent his name from

being exploited for another’s gain.2 

Although the names clause is not viewpoint based, it is 

—————— 2 It is also hard to see the viewpoint discrimination that Elster alleges

in practice. The PTO has refused registration of trademarks such as 

“Welcome President Biden,” “I Stump for Trump,” and “Obama Pajama”—all because they contained another’s name without his consent, 

not because of the viewpoint conveyed. See PTO, Office Action of Dec. 8, 

2020, Serial No. 90226753; PTO, Office Action of Oct. 15, 2015, Serial 

No. 86728410; In re Hoefflin, 97 USPQ 2d 1174, 1177–1178 (TTAB 2010). 
 

 

6 VIDAL v. ELSTER 

Opinion of the Court 

content based. As we have explained, a restriction on

speech is content based if the “law applies to particular

speech because of the topic discussed or the idea or message 

expressed.” Reed, 576 U. S., at 163. The names clause 

turns on the content of the proposed trademark—whether

it contains a person’s name. If the trademark does contain 

a person’s name, and the registrant lacks that person’s consent, then the names clause prohibits registration. Because 

trademarks containing names “are treated differently from

[trademarks] conveying other types of ideas,” the names 

clause is content based. Id., at 164. 

We thus confront a situation we did not address in Tam 

or Brunetti. In Tam, we were careful to “leave open” the 

framework “for deciding free speech challenges to provisions of the Lanham Act.” 582 U. S., at 245, n. 17 (plurality 

opinion); see id., at 244, n. 16. And, in Brunetti, we declined 

to “say anything about how to evaluate viewpoint-neutral

restrictions on trademark registration.” 588 U. S., at 398, n. 

B 

Because we must now consider for the first time the constitutionality of a content-based—but viewpoint-neutral—

trademark restriction, we begin by addressing how the nature of trademark law informs the applicable constitutional

scrutiny. Although a content-based regulation of speech is

presumptively unconstitutional as a general matter, we 

have not decided whether heightened scrutiny extends to a

viewpoint-neutral trademark restriction. Several features 

of trademark counsel against a per se rule of applying 

heightened scrutiny to viewpoint-neutral, but contentbased trademark regulations. 

Most importantly, trademark rights have always coexisted with the First Amendment, despite the fact that 

trademark protection necessarily requires content-based 

distinctions. See generally Tam, 582 U. S., at 223–224; 

Trade-Mark Cases, 100 U. S., at 92. Trademark rights 
Cite as: 602 U. S. ____ (2024) 7 

Opinion of the Court 

“ha[ve] been long recognized by the common law and the

chancery courts of England and of this country, and by the 

statutes of some of the States,” and that protection continues today. Id., at 92. As we all agree, this “[h]istory informs 

the understanding that content-based distinctions are an

intrinsic feature of trademarks.” Post, at 6 (SOTOMAYOR, J., 

concurring in judgment); accord, post, at 2–6 (BARRETT, J., 

concurring in part). And, for the duration of that history,

the inherently content-based nature of trademark law has 

never been a cause for constitutional concern. 

Our country has recognized trademark rights since the 

founding. See B. Pattishall, The Constitutional Foundations of American Trademark Law, 78 Trademark Rep. 456, 

457–459 (1988). At the outset, there were few recorded decisions, and the law developed slowly. Much of early American trademark law “was lifted essentially from that of England.” Id., at 457. The protection of trademarks under

English law was an inherently content-based endeavor. For 

example, an early English law made it “lawful to and for 

every Trader, Dealer and Weaver of Linen Manufacture, to

weave his Name, or fix some known Mark in any Piece of 

Linen Manufacture by him made.” 13 Geo. I, c. 26, p. 458 

(1726). And, a person could be liable for fraud if he sold a 

product under another person’s mark. See, e.g., id., at 459; 

Singleton v. Bolton, 3 Dougl. 293, 99 Eng. Rep. 661 (K. B. 

1783); Southern v. How, Pop. 143, 144, 79 Eng. Rep. 1243, 

1244 (K. B. 1618) (mentioning that an “action did well lie” 

if a clothier “used the same mark” as another); J. Baker,

Sources of English Legal History: Private Law to 1750, 

p. 675 (2d ed. 2010) (discussing J. G. v. Samford, also 

known as Sandforth’s Case, which held in 1584 that an action could lie when a clothier “used another [clothier’s]

mark”); see also G. Jacob, A New-Law Dictionary (1729)

(defining “Mark to Goods” as “what ascertains the Property

or Goodness thereof . . . And if one Man shall use the Mark 

of another, to the Intent to do him Damage, Action upon the 
 

 

8 VIDAL v. ELSTER 

Opinion of the Court 

Case lieth”). So, the content of the mark (whether it was 

the same as another person’s) triggered the restriction. 

Although there was an early push for federal legislation 

to protect trademarks, no such law was enacted during our

country’s infancy. See B. Paster, Trademarks—Their Early 

History, 59 Trademark Rep. 551, 565–566 (1969); see also

F. Schechter, Historical Foundations of the Law Relating to

Trade-Marks 131 (1925) (Schechter). Instead, trademark 

law fell largely within “the province of the States” for the 

18th and most of the 19th century. Tam, 582 U. S., at 224. 

For example, Massachusetts passed a private bill incorporating a cotton corporation on the condition that it affix a 

label to its goods “with the seal of the said Corporation.” 1 

Mass. Private and Special Laws, 1789, ch. 43, §5, p. 226

(1805). The law also prevented others from “us[ing] a like

seal or label” by subjecting them to treble damages. Ibid. 

To be sure, for most of our first century, most commerce was 

local and most consumers therefore knew the source of the 

goods they purchased. See R. Bone, Hunting Goodwill: A 

History of the Concept of Goodwill in Trademark Law, 86 

B. U. L. Rev. 547, 575 (2006). “[E]ven as late as 1860 the

term ‘trademark’ really denoted only the name of the manufacturer.” B. Pattishall, Two Hundred Years of American 

Trademark Law, 68 Trademark Rep. 121, 128 (1978). 

There was nonetheless “a certain amount of litigation in the 

state courts in the early nineteenth century,” though it 

went unrecorded. Schechter 133. 

The “first reported American decision that may be described as a trademark case” involved a dispute over the 

content of a mark—and in particular, the use of a person’s 

name. Pattishall, Constitutional Foundations, at 460. In 

Thomson v. Winchester, 36 Mass. 214, 216 (1837), Samuel 

Thomson—who sold a medicine under the name “Thomsonian Medicines”—brought suit against another Massachusetts druggist who sold an allegedly inferior product under the same name. The court held that the druggist could 
 

 

Cite as: 602 U. S. ____ (2024) 9 

Opinion of the Court 

be liable for fraud if he passed the medicine off as that of 

Thomson. Ibid. 

In a similar vein, the first reported trademark case in federal court revolved around a trademark’s content. Justice 

Story, sitting as Circuit Justice, granted an injunction to 

prohibit a seller of spools from infringing on the plaintiff ’s 

trademark of “Taylor’s Persian Thread.” Taylor v. Carpenter, 3 Story 458 (D. Mass. 1844). Justice Story explained

that, by using the trademark, the seller “imitated . . . both 

descriptions of spools and labels, red and black, of the plaintiffs,” and that the principles prohibiting such infringement

were at that time “very familiar to the profession” and not

“susceptible of any judicial doubt.” Id., at 464. 

Recorded trademark law began to take off in the last decades of the 19th century—after the ratification of the Fourteenth Amendment in 1868—and its established contentbased nature continued. See Schechter 134; Pattishall, Two 

Hundred Years, at 133. American commerce became more 

national in character, and, perhaps because of this shift, 

Congress enacted the first federal trademark law in 1870.

Although States retained their important role, “Congress

stepped in to provide a degree of national uniformity” for 

trademark protection. Tam, 582 U. S., at 224 (citing Act of 

July 8, 1870, §§77–84, 16 Stat. 210–212).3 

This first law contained prohibitions on what could be

protected as a trademark. For example, the law would not 

protect a trademark that contained “merely the name of a 

person . . . only, unaccompanied by a mark sufficient to distinguish it from the same name when used by other persons.” Id., at 211. It thus restricted a trademark based 

—————— 3This first federal trademark law “provided for the registration of 

trademarks generally without regard to whether they were used in interstate or foreign commerce.” 1 McCarthy §5:3, at 188. This Court held 

that the law exceeded Congress’s power under the Commerce Clause. 

See Trade-Mark Cases, 100 U. S. 82, 99 (1879). The law drew no challenge under the First Amendment. 
 

 

 

10 VIDAL v. ELSTER 

Opinion of the Court 

upon its content (i.e., whether it contained more than a 

name). As trademark disputes increased, courts continued

to assess trademarks based on their content. For example, 

this Court’s first trademark decision explained that a trademark cannot consist of a purely geographical name, rejecting an attempt by one of several coal producers in Pennsylvania’s Lackawanna Valley to trademark “Lackawanna 

coal.” Canal Co. v. Clark, 13 Wall. 311, 321 (1872).

Throughout its development, trademark law has required 

content-based distinctions. 

That did not change when Congress enacted the Lanham

Act in 1946. The Act’s comprehensive system for federal

registration of trademarks continues to distinguish based 

on a mark’s content. See Restatement (Third) of Unfair

Competition §9, Comment e (1993) (Restatement) (“The 

Lanham Act is generally declarative of existing law, incorporating the principal features of common law trademark

protection”). The Act defines a trademark to include “any

word, name, symbol, or device, or any combination thereof ” 

that a person uses “to identify and distinguish his or her 

goods . . . from those manufactured or sold by others and to 

indicate the source of the goods.” §1127. When the Government defines what may be registered as a trademark, it necessarily decides that some words or images cannot be used

in a mark. To take one example, the Lanham Act bars the 

registration of “a mark which so resembles [another’s] mark 

. . . as to be likely . . . to cause confusion, or to cause mistake, or to deceive.” §1052(d). It is impossible to determine

whether one trademark is the same as (or confusingly similar to) another without looking at the content of the two

marks. 

This history, reflected in the Lanham Act still today, 

demonstrates that restrictions on trademarks have always

turned on a mark’s content. But, despite its content-based

nature, trademark law has existed alongside the First 
 

 

Cite as: 602 U. S. ____ (2024) 11 

Opinion of the Court 

Amendment from the beginning. That longstanding, harmonious relationship suggests that heightened scrutiny 

need not always apply in this unique context. 

The content-based nature of trademark protection is compelled by the historical rationales of trademark law. A 

trademark has generally served two functions: “indicating 

ownership of the goods to which it [is] affixed” and “indicating the source or origin of manufacture.” Schechter 122. 

Indicating ownership of a good was needed in part to “fi[x]

responsibility for defective merchandise.” Restatement §9,

Comment b. And, indicating the source of the good helped 

“prospective purchasers . . . make their selections based 

upon the reputation, not merely of the immediate vendor,

but also of the manufacturer.” Ibid. Both goals thus reflect 

that trademarks developed historically to identify for consumers who sold the goods (the vendor) and who made the 

goods (the manufacturer). See ibid. In that vein, a basic 

function of trademark law has always been to “prohibi[t] 

confusion as to the source of good or services.” Pattishall, 

Constitutional Foundations, at 458; see also Jack Daniel’s 

Properties, Inc. v. VIP Products LLC, 599 U. S. 140, 147 

(2023) (“Confusion as to source is the bête noire of trademark law”). Indicating ownership and the manufacturing

source touch on the content of the mark—i.e., from whom 

the product came. And, as we have explained, policing

trademarks so as to prevent confusion over the source of

goods requires looking to the mark’s content. Supra, at 10. 

Because of the uniquely content-based nature of trademark regulation and the longstanding coexistence of trademark regulation with the First Amendment, we need not 

evaluate a solely content-based restriction on trademark

registration under heightened scrutiny. See R. A. V., 505 

U. S., at 387 (“Even the prohibition against content discrimination that we assert the First Amendment requires is not

absolute”); Jack Daniel’s, 599 U. S., at 159 (explaining that,

in some circumstances, “trademark law [can] prevai[l] over 
 

 

12 VIDAL v. ELSTER 

Opinion of the Court 

the First Amendment” (internal quotation marks omitted)); 

post, at 6 (opinion of SOTOMAYOR, J.); post, at 6–7 (opinion 

of BARRETT, J.). 

C 

We have acknowledged that trademark rights and restrictions can “play well with the First Amendment.” Jack 

Daniel’s, 599 U. S., at 159 (internal quotation marks omitted). In this case, we do not delineate an exhaustive framework for when a content-based trademark restriction 

passes muster under the First Amendment. But, in evaluating a solely content-based trademark restriction, we can

consider its history and tradition, as we have done before

when considering the scope of the First Amendment. See 

City of Austin v. Reagan Nat. Advertising of Austin, LLC, 

596 U. S. 61, 75 (2022); id., at 101 (THOMAS, J., dissenting); 

R. A. V., 505 U. S., at 382–383; Roth v. United States, 354 

U. S. 476, 482–483 (1957).

The Lanham Act’s names clause has deep roots in our legal tradition. Our courts have long recognized that trademarks containing names may be restricted. And, these 

name restrictions served established principles. 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. We 

need look no further in this case. 

1 

Restrictions on trademarking names have a long history.

See generally 2 McCarthy §13:5. Such restrictions have 

historically been grounded in the notion that a person has

ownership over his own name, and that he may not be excluded from using that name by another’s trademark. As 

the Court has explained, “[a] man’s name is his own property, and he has the same right to its use and enjoyment as

he has to that of any other species of property.” Brown 
 

Cite as: 602 U. S. ____ (2024) 13 

Opinion of the Court 

Chemical Co. v. Meyer, 139 U. S. 540, 544 (1891). It is 

therefore “an elementary principle that every man is entitled to the use of his own name in his own business.” F. 

Treadway, Personal Trade-Names, 6 Yale L. J. 141, 143–

144 (1897) (Treadway); see also A. Greeley, Foreign Patent

and Trademark Laws §138, p. 135 (1899) (“The right of any 

one to place his own name on goods sold by him is recognized as a natural right and cannot be interfered with”).

“The notion that people should be able to use their own 

name to identify their goods or business is deeply rooted in 

American mores.” B. Pattishall, D. Hilliard, & J. Welch, 

Trademarks and Unfair Competition §2.06 (2001). 

Recognizing a person’s ownership over his name, the common law restricted the trademarking of names. It prevented a person from trademarking any name—even his 

own—by itself. In “the early years of trademark law,”

courts recognized that “there can be no trade-mark in the 

name of a person, because . . . every person has the right to 

use his own name for the purposes of trade.” 2 McCarthy

§13:5 (internal quotation marks omitted); see also Restatement §14, Comment e (“[A]t early common law, the recognition of an unencumbered right to use one’s name in trade 

effectively precluded the existence of trademark or trade

name rights in personal names”); W. Browne, Law of TradeMarks §206, p. 219 (2d ed. 1885) (“The rule is, that a man

cannot turn his mere name into a trade-mark”); McLean v. 

Fleming, 96 U. S. 245, 252 (1878) (explaining that a person 

cannot obtain “the exclusive use of a name, merely as such,

without more”).

The common law did, however, allow a person to obtain a 

trademark containing his own name—with a caveat: A person could not use a mark containing his name to the exclusion of a person with the same name. “A corollary of the 

right to use one’s own name and identity in trade is the

right to stop others from doing so—at least those who don’t 
 

 

14 VIDAL v. ELSTER 

Opinion of the Court 

share the same name.” J. Rothman, Navigating the Identity Thicket, 135 Harv. L. Rev. 1271, 1306 (2022); see also 

Treadway 143–144. In other words, a person’s right to his

name cannot be exclusive as to other people bearing the

same name: John Smith cannot acquire a trademark that 

prohibits other John Smiths from using their own names. 

See McLean, 96 U. S., at 252 (“[H]e cannot have such a

right, even in his own name, as against another person of 

the same name, unless such other person uses a form of 

stamp or label so like that used by the complaining party as 

to represent that the goods of the former are of the latter’s 

manufacture”); accord, Brown Chemical, 139 U. S., at 542; 

MeNeely v. MeNeely, 62 N. Y. 427, 432 (Ct. App. 1875); see 

also Treadway 143; accord, post, at 10 (opinion of BARRETT, 

J.). Consider the case of John L. Faber and John H. Faber, 

two men who independently manufactured lead pencils 

near Nuremberg, Germany. Both men stamped the pencils 

they manufactured with their shared surname. After recognizing that each man “had the right to put his own name

on his own pencils,” the New York Supreme Court declined

to allow one man to effectively trademark the other man’s 

name. Faber v. Faber, 3 Abb. Pr. (N. S.) 115, 116 (1867). 

We see no evidence that the common law afforded protection to a person seeking a trademark of another living person’s name. To the contrary, English courts recognized that

selling a product under another person’s name could be actionable fraud. See, e.g., Singleton, 3 Dougl. 293, 99 Eng. 

Rep. 661; Croft v. Day, 7 Beav. 84, 88, 49 Eng. Rep. 994, 996 

(1843) (“[N]o man has a right to sell his goods as the goods

of another”). This recognition carried over to our country. 

See McLean, 96 U. S., at 252 (“[I]t is doubtless correct to say 

that a person may have a right in his own name as a trademark as against a trader or dealer of a different name”); see

also Faber, 3 Abb. Pr. (N. S.), at 116. Even in the absence 

of fraud, it would be difficult, if not impossible, to square

such a right to trademark another person’s name with our 
 

Cite as: 602 U. S. ____ (2024) 15 

Opinion of the Court 

established understanding that “[a] person may have a 

right in his own name as a trade-mark, as against a person 

of a different name.” Gilman v. Hunnewell, 122 Mass. 139, 

148 (1877); see also Thaddeus Davids Co. v. Davids Mfg. 

Co., 233 U. S. 461, 472 (1914) (highlighting persons’ “right 

to use their own name in trade”); Faber, 3 Abb. Pr. (N. S.), 

at 116 (“[T]he maker had the right to put his own name on

his own pencils”). Relatedly, one could contract for the use 

of another person’s name in his business. See, e.g., McLean, 

96 U. S., at 249 (explaining that a “physician whose name 

the pills bear . . . sold the right to use the same” to another); 

see also L. E. Waterman Co. v. Modern Pen Co., 235 U. S. 

88, 96 (1914); Meriden Britannia Co. v. Parker, 39 Conn. 

450, 453 (1872) (“[T]hey made a contract with the petitioners, by which, and by subsequent contracts, the petitioners 

acquired the right . . . to manufacture and sell plated

spoons and forks with the name ‘Rogers’ stamped thereon 

as a component part of a trade mark”). Such contracts 

would make little sense if one could use another living person’s name in business at will. The common-law approach 

to trademarking names thus protected only a person’s right 

to use his own name. 

This common-law understanding carried over into federal 

statutory law. The first federal trademark law contained a 

requirement that a trademark contain more than merely a 

name. See Act of July 8, 1870, §79, 16 Stat. 211. That requirement remains largely intact. See §1052(e)(4) (prohibiting registration of a trademark if it “is primarily merely a 

surname”). A few decades later, federal trademark law emphasized “‘[t]hat nothing herein shall prevent the registration of a trade-mark otherwise registerable because of its 

being the name of the applicant.’” Act of Feb. 18, 1911, 

ch. 113, 36 Stat. 918 (emphasis added). And, the Lanham 

Act later “incorporat[ed] the principal features of common 

law trademark protection,” thereby “declar[ing] . . . existing 
 

16 VIDAL v. ELSTER 

Opinion of the Court 

law” rather than writing trademark law from scratch. Restatement §9, Comment e; see also W. Derenberg, TradeMark Protection and Unfair Trade 22 (1936) (explaining 

that the “function [of federal trademark law] is essentially

an evidential one, reflecting the underlying common law 

trade-mark right with the existence of which it rises and

falls”). It is thus unsurprising that the Lanham Act included the names clause, prohibiting the registration of a

mark containing “a name . . . identifying a particular living

individual except by his written consent.” §1052(c). The 

names clause reflects the common law’s careful treatment 

of names when it comes to trademarks. 

The restriction on trademarking names also reflects 

trademark law’s historical rationale of identifying the 

source of goods. See Hanover Star Milling Co. v. Metcalf, 

240 U. S. 403, 412 (1916) (“The primary and proper function

of a trade-mark is to identify the origin or ownership of the 

article to which it is affixed”); accord, post, at 8 (opinion of 

BARRETT, J.). Trademark protection ensures that consumers know the source of a product and can thus evaluate it 

based upon the manufacturer’s reputation and goodwill. 

See Restatement §9, Comment b; see also Powell v. Birmingham Vinegar Brewery Co., 13 Rep. Pat. Cas. 235, 250

(Ct. App. 1896) (Lindley, L. J.) (“His mark, as used by him, 

has given a reputation to his goods. His trade depends

greatly on such reputation. His mark sells his goods”). By

barring a person from using another’s name, the names 

clause reflects the traditional rationale of ensuring that 

consumers make no mistake about who is responsible for a

product. See also Hanover Star Milling Co., 240 U. S., at 

412–413 (“The essence of the wrong [for trademark infringement] consists in the sale of the goods of one manufacturer or vendor for those of another”). 

Moreover, the names clause respects the established connection between a trademark and its protection of the mark-
 

 

 

Cite as: 602 U. S. ____ (2024) 17 

Opinion of the Court 

holder’s reputation. We have long recognized that a trademark protects the markholder’s reputation. See McLean, 

96 U. S., at 254 (explaining that a trademark “enable[s a 

mark-holder] to secure such profits as result from his reputation for skill, industry, and fidelity”); see also Hanover 

Star Milling Co., 240 U. S., at 412–413, 414; Celluloid Mfg. 

Co. v. Cellonite Mfg. Co., 32 F. 94, 97 (CC NJ 1887) (Bradley, J.). This protection reflects that a mark may “acquir[e]

value” from a person’s “expenditure of labor, skill, and 

money.” San Francisco Arts & Athletics, Inc. v. United 

States Olympic Comm., 483 U. S. 522, 532 (1987) (internal

quotation marks omitted); accord, McLean, 96 U. S., at 251. 

Accordingly, when a person uses another’s mark, “the 

owner is robbed of the fruits of the reputation that he had 

successfully labored to earn.” Amoskeag Mfg. Co. v. Spear 

& Ripley, 2 Sandf. 599, 606 (NY Super. Ct. 1849). A person’s trademark is “his authentic seal,” and “[i]f another 

uses it, he borrows the owner’s reputation, whose quality no 

longer lies within his own control.” Yale Elec. Corp. v. Robertson, 26 F. 2d 972, 974 (CA2 1928) (Hand, J.). “This is an 

injury, even though the borrower does not tarnish it, or divert any sales by its use; for a reputation, like a face, is the 

symbol of its possessor and creator, and another can use it 

only as a mask.” Ibid. 

This connection between a trademark and reputation is 

even stronger when the mark contains a person’s name. 

“[I]s not a man’s name as strong an instance of trade-mark

as can be suggested?” Ainsworth v. Walmsley, 1 L. R., Eq. 

518, 525 (1866). In fact, the English common law of trademarks arose from the fact that “those who sold goods . . . 

that were the fruit of their own labor or craftsmanship [began to] identif[y] those products . . . with their own names.” 

Pattishall, Constitutional Foundations, at 457. As we have 

explained, virtually up until the Fourteenth Amendment’s 

adoption, a trademark “really denoted only the name of the 

manufacturer.” Pattishall, Two Hundred Years, at 128. 
 

 

18 VIDAL v. ELSTER 

Opinion of the Court 

And, this Court has long associated names with the good 

will they may bear. See McLean, 96 U. S., at 252; L. E. Waterman Co., 235 U. S., at 96 (“He purported to transfer to 

the partnership the good will attaching to his name”). The 

names clause thus protects “the reputation of the named

individual” by preventing another person from using his 

name. Post, at 9 (opinion of BARRETT, J.).

Applying these principles, we have recognized that a 

party has no First Amendment right to piggyback off the 

goodwill another entity has built in its name. In San Francisco Arts & Athletics, Inc., the Court upheld a provision of 

the Amateur Sports Act of 1978 that prohibited “‘any person’” from using the word “‘Olympic’” for certain purposes

“‘[w]ithout the consent’” of the U. S. Olympic Committee

(USOC), and subjected violations to “‘the remedies provided in the Lanham Act.’” 483 U. S., at 528 (quoting 36 

U. S. C. §380(a); alteration omitted). The Court rejected the 

argument that the consent requirement violated the First 

Amendment because “Congress reasonably could conclude”

that the value of the word “‘Olympic’ was the product of the 

USOC’s ‘own talents and energy.’” 483 U. S., at 532–533 

(quoting Zacchini v. Scripps-Howard Broadcasting Co., 433 

U. S. 562, 575 (1977)). Although the petitioner certainly

had a First Amendment right to speak on political matters, 

it lacked the right to “exploit the commercial magnetism” of

the word “Olympic” and the USOC’s hard-won efforts in giving that word value. 483 U. S., at 539 (internal quotation 

marks omitted). The names clause guards a similar interest. By protecting a person’s use of his name, the names 

clause “secur[es] to the producer the benefits of [his] good

reputation.” Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 

469 U. S. 189, 198 (1985); see also Pattishall, Two Hundred 

Years, at 121 (explaining how trademark law protects a 

person’s “commercial identity, thereby [allowing him] to enjoy the fruits of his own labor”). 
 

Cite as: 602 U. S. ____ (2024) 19 

Opinion of the Court 

2 

We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and 

the names clause fits within that tradition. Though the

particulars of the doctrine have shifted over time, the consistent through line is that a person generally had a claim

only to his own name. The names clause reflects this 

common-law tradition by prohibiting a person from obtaining a trademark of another living person’s name without

consent, thereby protecting the other’s reputation and goodwill.4 

None of this is to say that the Government cannot innovate when it comes to trademark law. A firm grounding in

traditional trademark law is sufficient to justify the contentbased trademark restriction before us, but we do not opine 

on what may be required or sufficient in other cases. To be 

sure, as JUSTICE BARRETT observes, a case presenting a 

content-based trademark restriction without a historical 

—————— 4 JUSTICE BARRETT takes a different approach, suggesting that a historical rule that mirrors the names clause is required. See post, at 11. But, 

history-focused approaches to constitutional scrutiny do not typically require a historical twin. Cf. New York State Rifle & Pistol Assn., Inc. v. 

Bruen, 597 U. S. 1, 30 (2022). Nor do JUSTICE BARRETT’s examples undercut the names clause’s historical grounding, as they raise different 

aspects of trademarking names. For example, she relies upon cases that

concern trademarks containing “the name of a famous person, long since 

dead.” Barrows v. Knight, 6 R. I. 434, 438 (1860); see also Stephano 

Bros., Inc. v. Stamatopoulos, 238 F. 89, 93 (CA2 1916) (“In this case the 

name adopted is a famous Egyptian historical character, who lived at 

least 1,000 years before the Christian era”). The part of the names clause 

that we address concerns only “a particular living individual[’s]” name. 

§1052(c) (emphasis added). And, her other examples concern names that 

had become generic or descriptive words. See Messerole v. Tynberg, 4 

Abb. Pr. (N. S.) 410, 414 (NY Ct. Com. Pl. 1868) (treating “the word ‘Bismarck’ ” as “a popular term and one in general use”); Medlar & Holmes 

Shoe Co. v. Delsarte Mfg. Co., 46 A. 1089, 1091 (CC NJ 1900) (treating

the name of the deceased French artist Delsarte as “a generic or descriptive term”). 
 

 

 

 

 

20 VIDAL v. ELSTER 

Opinion of THOMAS, J. 

analogue may require a different approach. Post, at 15. 

But, we need not develop such a comprehensive theory to 

address the relatively simple case before us today. See post, 

at 1 (KAVANAUGH, J., concurring in part).

We conclude that the names clause is of a piece with a 

common-law tradition regarding the trademarking of 

names. We see no reason to disturb this longstanding tradition, which supports the restriction of the use of another’s 

name in a trademark. 

III 

Our colleagues would address the names clause with two

analogies. Neither is compelling in this case. Under both 

analogies, the test would boil down to what a judge believes 

is “reasonable in light of the purpose” of trademark law. 

Post, at 5 (opinion of SOTOMAYOR, J.); see post, at 7–8 (opinion of BARRETT, J.). But, no matter the approach taken, we

all agree that the names clause does not violate the First 

Amendment. 

JUSTICE SOTOMAYOR would pull “strands of precedent” 

together to conclude that heightened scrutiny does not apply to trademark registration because it is a Government 

initiative or benefit. Post, at 8. This conclusion rests primarily upon cases in which the Government provides a cash

subsidy or conditions the use of a public payroll to collect 

union dues. See ibid. But, those cases “occupy a special

area of First Amendment case law, and they are far removed from the registration of trademarks.” Tam, 582 

U. S., at 241 (plurality opinion). The Governmentbenefit cases are an ill fit for the names clause, and we 

would not graft this precedent, which JUSTICE SOTOMAYOR 

acknowledges is not controlling, onto this trademark dispute. Post, at 8–9. 

JUSTICE BARRETT, echoed by JUSTICE SOTOMAYOR, would 

import the test that we have used for a “limited public fo-
 

Cite as: 602 U. S. ____ (2024) 21 

Opinion of THOMAS, J. 

rum.” Our precedents hold that the Government “may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects.” Pleasant 

Grove City v. Summum, 555 U. S. 460, 470 (2009). JUSTICE 

BARRETT provides little explanation for why that approach

makes sense in the trademark context—she simply declares 

that the limited public forum framework “is apt” due to the 

content-based nature of trademark law. Post, at 7. Although she attempts to cabin the analogy to the contentbased nature, the limited public forum test is quite obviously about creating a forum. And, there is reason to doubt 

that the federal trademark register is analogous to a limited public forum. To start, unlike a speaker in a limited 

public forum, a markholder does not communicate with customers on the register. Rather, as the Government 

acknowledges, the register “is a way of warning potential 

infringers that they risk liability if they use the same or 

confusingly similar marks.” Tr. of Oral Arg. 19. The Government has also previously asserted that it did not create

a forum for speech by providing for the federal registration

of trademarks. See Reply Brief in Matal v. Tam, O. T. 2016, 

No. 15–1293, p. 4 (“[T]he government has not created a forum here”); Tr. of Oral Arg. in Iancu v. Brunetti, O. T. 2018, 

No. 18–302, p. 27 (“[W]e don’t regard it as a limited public 

forum”). Without an analogous forum, it is hard to see why

the test for a limited public forum should apply. We see no 

need to adopt a potentially fraught analogy to resolve the

names clause’s constitutionality.

Despite the differences in methodology, both JUSTICE 

SOTOMAYOR and JUSTICE BARRETT reach the same conclusion that the names clause does not violate the First 

Amendment. On the bottom line, there is no dispute. Rather than adopt a reasonableness test premised upon loose

analogies, however, we conclude that the names clause is

grounded in a historical tradition sufficient to demonstrate

that it does not run afoul of the First Amendment. 
 

22 VIDAL v. ELSTER 

Opinion of the Court 

IV 

Our decision today is narrow. We do not set forth a comprehensive framework for judging whether all contentbased 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. 
_________________ 

_________________ 

Cite as: 602 U. S. ____ (2024) 1 

KAVANAUGH, J., concurring in part 

SUPREME COURT OF THE UNITED STATES 

No. 22–704 

KATHERINE K. VIDAL, UNDER SECRETARY OF 

COMMERCE FOR INTELLECTUAL PROPERTY 

AND DIRECTOR, UNITED STATES PATENT 

AND TRADEMARK OFFICE, PETITIONER 

v. STEVE ELSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT 

[June 13, 2024] 

JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE 

joins, concurring in part. 

I join all but Part III of the Court’s opinion. I agree with 

the Court that the names clause is constitutional, 

particularly in light of the long history of restricting the use 

of another’s name in a trademark. In my view, a viewpointneutral, content-based trademark restriction might well be 

constitutional even absent such a historical pedigree. We 

can address that distinct question as appropriate in a

future case. Cf., e.g., post, at 7–9 (BARRETT, J., concurring

in part). 
_________________ 

_________________ 

Cite as: 602 U. S. ____ (2024) 1 

BARRETT, J., concurring in part 

SUPREME COURT OF THE UNITED STATES 

No. 22–704 

KATHERINE K. VIDAL, UNDER SECRETARY OF 

COMMERCE FOR INTELLECTUAL PROPERTY 

AND DIRECTOR, UNITED STATES PATENT 

AND TRADEMARK OFFICE, PETITIONER 

v. STEVE ELSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT 

[June 13, 2024] 

JUSTICE BARRETT, with whom JUSTICE KAGAN joins, with 

whom JUSTICE SOTOMAYOR joins as to Parts I, II, and III– 

B, and with whom JUSTICE JACKSON joins as to Parts I and 

II, concurring in part. 

While I agree with the Court that the names clause does 

not violate the First Amendment, I disagree with some of

its reasoning. The Court claims that “history and tradition”

settle the constitutionality of the names clause, rendering

it unnecessary to adopt a standard for gauging whether a 

content-based trademark registration restriction abridges

the right to free speech. That is wrong twice over. First, 

the Court’s evidence, consisting of loosely related cases

from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause. Second, the 

Court never explains why hunting for historical forebears

on a restriction-by-restriction basis is the right way to analyze the constitutional question. I would adopt a standard, 

grounded in both trademark law and First Amendment 

precedent, that reflects the relationship between contentbased trademark registration restrictions and free speech. 

In my view, such restrictions, whether new or old, are per-
 

 

 

2 VIDAL v. ELSTER 

BARRETT, J., concurring in part 

missible so long as they are reasonable in light of the trademark system’s purpose of facilitating source identification. 

I 

Content-based speech regulations are, as a general matter, “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). “The rationale of the general prohibition,” we have explained, “is that content 

discrimination ‘raises the specter that the Government may

effectively drive certain ideas or viewpoints from the marketplace.’” R. A. V. v. St. Paul, 505 U. S. 377, 387 (1992) 

(quoting Simon & Schuster, Inc. v. Members of N. Y. State 

Crime Victims Bd., 502 U. S. 105, 116 (1991)). But we have 

also recognized that in certain situations, this presumption

is inapplicable, as “‘there is no realistic possibility that official suppression of ideas is afoot.’” Davenport v. Washington Ed. Assn., 551 U. S. 177, 189 (2007) (quoting R. A. V., 

505 U. S., at 390).

I agree with the Court that content-based trademark registration restrictions do not trigger the presumption of unconstitutionality. See ante, at 6. Because federal trademark law did not exist at the founding—and American

trademark law did not develop in earnest until the mid19th century—I do not take the Court to be making a claim

about the original meaning of the Free Speech Clause. But, 

as the Court implicitly recognizes, the absence of foundingera evidence does not mean that content-based trademark 

registration restrictions are inherently suspect. More than 

a century’s worth of precedent reflects that trademark law 

has always been content based without functioning as a 

ready tool of Government censorship. The First Amendment does not require us to upend this longstanding, stable 

system by treating trademark restrictions as “presumptively unconstitutional.” Reed, 576 U. S., at 163. 
 

 

Cite as: 602 U. S. ____ (2024) 3 

BARRETT, J., concurring in part 

A 

As the Court explains, trademark law existed at the

founding, albeit in nascent form. Ante, at 7; B. Pattishall, 

The Constitutional Foundations of American Trademark 

Law, 78 Trademark Rep. 456, 457–459 (1988). From the 

outset, trademark protection “was an inherently contentbased endeavor.” Ante, at 7. Early English and American

laws prohibited producers from placing another producer’s

trademark on their goods—a prohibition that depended on 

comparing the content of the mark with the content of the

allegedly infringing use. Ante, at 7–8. That alone does not 

prove that every type of content-based trademark regulation should escape heightened scrutiny. More relevant is 

that courts and legislatures, in identifying the marks that 

merit legal protection, have long discriminated on the basis

of content. Ante, at 9–10. This history, in my view, is key 

to understanding why we need not evaluate content-based 

trademark registration restrictions under heightened scrutiny.

Once trademark law got off the ground in the mid-19th

century, it had an unmistakably content-based character. 

Thomson v. Winchester, the first reported American trademark case, involved two parties who both sold medicine under the name “‘Thomsonian Medicines.’” 36 Mass. 214, 216 

(1837). See E. Rogers, Some Historical Matter Concerning 

Trade-Marks, 9 Mich. L. Rev. 29, 42 (1910). The Court cites 

this case as reflective of the content-based nature of trademark protection. Ante, at 8–9. True, Thomson explained

that the defendant could be liable if he had sold his goods 

under the plaintiff ’s name as an attempted fraud. 36 

Mass., at 216. But the court explained that the result would 

be different if the defendant “call[ed his goods] Thomsonian

as a generic term designating their general character.” 

Ibid. That was because Thomson, the plaintiff, could not

claim an exclusive right to use the name “if [the] term had

acquired a generic meaning, descriptive of a general kind, 
 

 

 

4 VIDAL v. ELSTER 

BARRETT, J., concurring in part 

quality and class of medicines.” Ibid. In other words, 

whether a word or phrase could qualify for trademark protection depended on “its communicative content.” Reed, 576 

U. S., at 163. 

Roughly 10 years later, the New York Superior Court further developed this content-based principle in Amoskeag 

Mfg. Co. v. Spear & Ripley, 2 Sandf. 599 (1849), long “‘regarded as the leading American adjudication’” of a trademark dispute. B. Pattishall, Two Hundred Years of American Trademark Law, 68 Trademark Rep. 121, 125 (1978).

The court agreed that “[e]very manufacturer . . . has an unquestionable right to distinguish the goods that he manufactures or sells, by a peculiar mark or device, in order that

they may be known as his.” Amoskeag, 2 Sandf., at 605. 

But the law will only “protec[t him] in the exclusive use” of

marks that “designat[e] the true origin or ownership”—i.e., 

the source—of the goods. Id., at 606. The manufacturer 

cannot claim a protectable trademark in “words, letters, figures or symbols” that indicate only the “name or quality”— 

i.e., not the source—of the goods. Ibid. After all, those who 

produce similar goods could use the same words or symbols

“with equal truth”—thus, they should have “an equal right 

to employ [them], for the same purpose.” Id., at 607. 

Courts repeated and applied this rule for decades. See, 

e.g., Wolfe v. Goulard, 18 How. Pr. 64, 67 (N. Y. Sup. Ct. 

1859); Falkinburg v. Lucy, 35 Cal. 52, 64 (1868); Filley v. 

Fassett, 44 Mo. 168, 176–177 (1869); Congress Spring Co. v. 

High Rock Spring Co., 45 N. Y. 291, 295 (1871). For instance, a gin manufacturer could not claim an exclusive 

right to the term “Schiedam Schnapps” if it already served 

as a common descriptor of gin. Wolfe, 18 How. Pr., at 67. 

But a stove manufacturer could trademark the term “‘Charter Oak,’” as a distinctive phrase not “merely descriptive of 

the style, quality, or character” of the product. Filley, 44 

Mo., at 176–177. Then, as now, courts understood that a 
Cite as: 602 U. S. ____ (2024) 5 

BARRETT, J., concurring in part 

mark merits protection only so far as it “identif[ies] the article to which it is affixed as that of the person adopting it, 

and distinguish[es] it from others.” Gillott v. Esterbrook, 47 

Barb. 455, 462 (N. Y. Sup. Ct. 1867), aff ’d, 48 N. Y. 374 

(1872); see also Matal v. Tam, 582 U. S. 218, 223 (2017). 

This inquiry is inherently content based. 

The ratification of the Fourteenth Amendment in 1868, 

which incorporated the First Amendment against the 

States, did not prompt courts to change course.1 They continued to scrutinize proposed marks based on their content.

Likewise, this Court’s first trademark decision, issued in 

1871, invoked Amoskeag’s content-based criteria to define 

those trademarks “entitled to legal protection.” Canal Co. 

v. Clark, 13 Wall. 311, 323–324 (1872) (concluding that “geographical names,” including “‘Pennsylvania wheat’” and

“‘Virginia tobacco,’” could not be protected as trademarks, 

as they “point only at the place of production, not to the producer”). See ante, at 10. Thus, at the earliest point at which

the First Amendment could have applied to trademark law,

content discrimination, particularly with respect to the

very definition of a trademark, was the norm. 

Trademark registration restrictions followed suit. Federal registration, though not required to enforce a trademark, “confers important legal rights and benefits on trademark owners” and thus “helps to ensure that trademarks 

are fully protected.” Matal, 582 U. S., at 225–226 (internal 

quotation marks omitted). Unsurprisingly, as the Court 

notes, Congress’s first trademark statute included certain

content-based restrictions for federal registration. See Act 

of July 8, 1870, §§77, 79, 16 Stat. 210–211; ante, at 9. And 

today, each of the Lanham Act’s registration criteria refers 

—————— 1There would have been no reason for courts to consider the relationship between the First Amendment and trademark law before 1868. Before incorporation, the First Amendment applied only to the Federal Government, and there was no federal trademark law until 1870. Ante, at 

8–9. 
 

 

6 VIDAL v. ELSTER 

BARRETT, J., concurring in part 

to the content of the applicant’s mark. See 15 U. S. C. 

§1052. Thus, just as courts have long identified the criteria

for trademark protection along content-based lines, Congress has defined the rules for enhanced trademark protection along content-based lines. 

B 

The upshot is that content discrimination has long been

“necessary for [trademark’s] purposes and limitations.” See 

Legal Services Corporation v. Velazquez, 531 U. S. 533, 543 

(2001) (considering the “accepted usage” of a “particular 

medium” to determine the constitutionality of speech restrictions within that medium). The law protects trademarks because they help consumers identify the goods that 

they intend to purchase and allow producers to “reap the 

financial rewards associated with the[ir] product’s good reputation.” Jack Daniel’s Properties, Inc. v. VIP Products 

LLC, 599 U. S. 140, 146 (2023); see also Falkinburg, 35 Cal., 

at 64. But trademarks can only fulfill these twin goals if

they actually serve as source identifiers, see Jack Daniel’s, 

599 U. S., at 146, which, as explained above, is a contentbased question, see supra, at 4–5. 

These content-based trademark rules have long coexisted

with the Free Speech Clause, and their function is generally 

compatible with it. Courts have applied content-based

rules not to “suppres[s] . . . ideas,” but simply to serve trademark law’s purposes. See Davenport, 551 U. S., at 189 (internal quotation marks omitted). Indeed, these trademark 

restrictions can actually help prevent “interfere[nce] with

the marketplace of ideas,” id., at 188, insofar as they ensure

that a single producer cannot exclusively appropriate words

or phrases in the general domain, see Wolfe, 18 How. Pr., at 

67. This is not to say that the Government could not abuse

content-based trademark registration restrictions—as I explain below, such restrictions are not insulated from scru-
 

 

Cite as: 602 U. S. ____ (2024) 7 

BARRETT, J., concurring in part 

tiny. But they do not set off alarm bells signaling the likelihood that “‘official suppression of ideas is afoot.’” Davenport, 551 U. S., at 189 (quoting R. A. V., 505 U. S., at 390).

Therefore, I agree with the Court that we need not treat 

content-based trademark registration restrictions as presumptively unconstitutional. Ante, at 6. 

II 

Though content-based registration restrictions do not 

trigger strict scrutiny, they are still subject to judicial review. Thus, we must decide how to evaluate Elster’s challenge to the names clause.

The Solicitor General suggests that we draw an analogy

to another area that is inherently content based: the limited 

public forum. When the government opens its property to

speech for a particular purpose, creating a limited public

forum, it necessarily must “reserv[e the property] for certain groups or for the discussion of certain topics.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 

829 (1995). Content-based restrictions are “inherent and 

inescapable” in maintaining a forum for speech “compatible 

with the intended purpose of the property.” Perry Ed. Assn. 

v. Perry Local Educators’ Assn., 460 U. S. 37, 49 (1983). It 

is therefore inappropriate to view these restrictions as presumptively unconstitutional and apply strict scrutiny. 

Still, not every restriction is permissible. To evaluate these 

rules, we ask “whether they are reasonable in light of the

purpose which the forum at issue serves.” Ibid. This ensures that the government “respect[s] the lawful boundaries it has itself set.” Rosenberger, 515 U. S., at 829. 

Though I would not shoehorn the trademark registration

system into the definition of a “limited public forum,” the 

Solicitor General’s analogy is apt.2 Content discrimination 

—————— 2 JUSTICE THOMAS mistakenly suggests that I present the federal trademark register as a limited public forum. Ante, at 21. That is not my 
 

 

 

 

8 VIDAL v. ELSTER 

BARRETT, J., concurring in part 

is “[i]mplicit in the concept of ” the trademark registration

system much like it is in a limited public forum. Perry, 460 

U. S., at 49. Federal registration “help[s] protect marks” by

conferring strong legal rights on markowners who register

them. B&B Hardware, Inc. v. Hargis Industries, Inc., 575 

U. S. 138, 142 (2015). Congress provided for “national protection of trademarks in order to secure to the owner of the 

mark the goodwill of his business and to protect the ability 

of consumers to distinguish among competing producers,”

matching trademark’s historical goals. Park ’N Fly, Inc. v. 

Dollar Park & Fly, Inc., 469 U. S. 189, 198 (1985); see supra, at 4–5. A mark can only fulfill those goals to the extent 

that it “tells the public who is responsible for [the] product.” 

Jack Daniel’s, 599 U. S., at 146. This is a content-based 

requirement.

Content-based criteria for trademark registration do not

abridge the right to free speech so long as they reasonably 

relate to the preservation of the markowner’s goodwill and 

the prevention of consumer confusion. A particular restriction will serve those goals if it helps ensure that registered marks actually function as source identifiers. Notably, “the lead criterion for registration is that the mark ‘in

fact serve as a “trademark” to identify and distinguish 

goods.’” Ibid. (quoting 3 J. McCarthy, Trademarks and Unfair Competition §19:10 (5th ed. 2023) (McCarthy)). Other 

registration criteria help to carry out that threshold requirement. For instance, the Lanham Act prohibits the registration of marks that are “merely descriptive” of the applicant’s goods. 15 U. S. C. §1052(e)(1). As courts 

frequently explained in the early years of trademark, marks

that simply describe the kind and quality of the good do not 

—————— 

position. Rather, I view the content-based nature of the limited public 

forum as analogous to the trademark registration system. Moreover, by 

characterizing my argument as a conclusory statement that the limited

public forum framework is “ ‘apt,’ ” JUSTICE THOMAS ignores my reasons 

for drawing the analogy. Ibid. 
 

 

 

Cite as: 602 U. S. ____ (2024) 9 

BARRETT, J., concurring in part 

necessarily identify its source. See supra, at 4–5. The bar 

on registering “deceptive” marks likewise prevents registered marks from misidentifying the source of the goods. 

§1052(a).

The names clause passes muster under this test. A trademark that includes another living person’s name without 

her consent has the obvious potential to create source confusion. Further, the clause helps protect producer goodwill. 

By freely using another person’s name in her mark, the

markowner can unfairly capitalize on the reputation of the 

named individual, who may be a producer in her own right.

Conversely, if the markowner’s goods or services are

shoddy, she might jeopardize the named individual’s reputation. 

Elster protests that consumers would not assume that

Donald Trump is responsible for the mark “‘Trump too 

small.’” Brief for Respondent 35. Thus, he argues that even

if the names clause generally guards against source confusion, refusing to register his proposed mark does not. But 

Congress is entitled to make categorical judgments, particularly where heightened scrutiny does not apply. The Government can reasonably determine that, on the whole, protecting marks that include another living person’s name 

without consent risks undermining the goals of trademark.

The names clause is therefore constitutional, both facially

and as applied to Elster’s mark. 

III 

Rather than adopt a generally applicable principle, the

Court assesses the names clause in isolation, treating the 

supposed history and tradition of the clause as determinative. In my view, the historical record does not alone suffice

to demonstrate the clause’s constitutionality. For one 

thing, the record does not support the Court’s conclusion. 

For another, I disagree with its choice to treat tradition as 

dispositive of the First Amendment issue. 
 

10 VIDAL v. ELSTER 

BARRETT, J., concurring in part 

A 

First, the Court’s history. It is true that “a tradition of 

restricting the trademarking of names” arose in the late

19th century. Ante, at 19. As the Court says, a personal 

name by itself, without any accompanying words or symbols, did not typically qualify as a trademark. See McLean 

v. Fleming, 96 U. S. 245, 252–253 (1878); ante, at 13. And 

a person could not always enforce a trademark including

her own name against another with the same name. See 

Brown Chemical Co. v. Meyer, 139 U. S. 540, 542 (1891); 

ante, at 14.3 The first federal trademark statute reflected 

these principles, prohibiting the registration of a mark that

was “merely the name of a person, firm, or corporation only, 

unaccompanied by a mark sufficient to distinguish it from

the same name when used by other persons.” §79, 16 Stat.

211. Today, the Lanham Act continues to bar the registration of a mark that is “primarily merely a surname.” 15 

U. S. C. §1052(e)(4).

But the Court also claims that the common law did not 

afford protection to a person seeking a trademark including 

another living person’s name (in other words, a rule akin to 

the names clause). Ante, at 14. I am less sure. In Thaddeus 

Davids Co. v. Davids Mfg. Co., 233 U. S. 461 (1914), this 

Court explained that the 1905 federal trademark statute 

contained “a fairly complete list of the marks used by dealers in selling their goods, which are not valid trademarks 

at common law.” Id., at 467 (internal quotation marks 

omitted). Notably, this statute did not include the names 

clause or any rough equivalent.4 And if such a common-law 

—————— 3By the early-20th century, however, courts enforced personal-name 

marks even against “newcomer[s] with the same name when confusion 

over source [was] the likely result.” 2 McCarthy §13:8; see L. E. Waterman Co. v. Modern Pen Co., 235 U. S. 88, 94 (1914). 4The Thaddeus Court referred specifically to the statute’s prohibition 

on the registration of marks that “consis[t] merely of individual, firm or 
Cite as: 602 U. S. ____ (2024) 11 

BARRETT, J., concurring in part 

rule existed, the majority opinion does not identify it. Instead, the Court draws from sources suggesting that a person could not enforce a trademark with another individual’s 

name against that individual. See ante, at 14–15. Nor 

could she fraudulently attempt to pass off her goods as 

those of another person, using that person’s name. Ante, at 

14. So far, so good. Yet the names clause prevents other 

uses of someone else’s name that the common law may have 

allowed. And on that score, the Court does not fully grapple 

with countervailing evidence. 

In 1860, the Supreme Court of Rhode Island concluded 

that the phrase “‘Roger Williams Long Cloth’” was “capable 

of distinguishing” the manufacturer’s goods and thus qualified as a trademark. Barrows v. Knight, 6 R. I. 434, 438. 

“‘Roger Williams,’ though the name of a famous person,” 

the Court explained, was, “as applied to cotton cloth, a fancy 

name,” as would be the case with “any other her[o], living 

or dead.” Ibid. (emphasis added). Likewise, a New York 

court upheld the plaintiffs’ exclusive right to use the name 

“Bismarck” to designate their paper collars, as they were 

the first to “appropriate” the name for that purpose. Messerole v. Tynberg, 4 Abb. Pr. (N. S.) 410, 414 (Ct. Com. Pl. 

1868). The court thus rejected the defendant’s argument 

that the plaintiffs could not adopt “the name of a distinguished German citizen” as a trademark. Id., at 412. Summarizing, the Second Circuit explained that “[t]he law permits the adoption as a trade-mark of the name of a person 

who has achieved fame and distinction, provided the name 

is not descriptive of the quality or the character of the article or a geographical name.” Stephano Bros., Inc. v. Stamatopoulos, 238 F. 89, 93 (1916). See also Medlar & 

—————— 

corporate names, not written or printed in a distinctive manner, or of

designations descriptive of the character or quality of the goods with

which they are used, or of geographical names or terms.” 233 U. S., at 

467. 
 

 

12 VIDAL v. ELSTER 

BARRETT, J., concurring in part 

Holmes Shoe Co. v. Delsarte Mfg. Co., 46 A. 1089 (N. J. Ch. 

Ct. 1900) (“The name of a famous person, used merely as a 

fancy name, may become an exclusive trade-mark”); W. 

Browne, Law of Trade-Marks §216, pp. 225–226 (2d ed. 

1885) (same).5 

The legislative history of the Lanham Act also undercuts 

the Court’s conclusion. If the names clause codified an existing common-law tradition, one might expect to see some 

reference to that tradition when the names clause was 

adopted. But proponents of the clause offered a different 

justification. Discussing a predecessor version of the 

clause, Edward Rogers, the Lanham Act’s primary drafter, 

remarked that “[t]he idea of prostituting great names by 

sticking them on all kinds of goods is very distasteful to 

me.” Trade-Marks: Hearings on H. R. 9041 before the Subcommittee on Trade-Marks, House Committee on Patents, 

75th Cong., 3d Sess., 79 (1938) (H. R. 9041); see J. Litman, 

Keynote Address, 39 Cardozo Arts & Ent. L. J. 855, 856 

(2021). The Commissioner of the Patent Office agreed, noting the “shock to [his] sense of propriety to see liberty taken 

. . . with the names of celebrities of private life.” H. R. 9041, 

at 79. He then referred to the attempted registration of “the 

name of the Duchess of Windsor for brassieres and ladies’ 

underwear.” Ibid. They did not suggest that the common 

—————— 5The Court dismisses my examples as irrelevant because several involve the names of dead individuals. Ante, at 19, n. 4. But “[t]he exclusive right to grace paper collars with Bismarck’s name was granted while 

he was still alive.” J. Pike, Personal Names as Trade Symbols, 3 Mo. 

L. Rev. 93, 101 (1938) (Pike). And the other authorities either expressly 

recognized that the names of famous living persons could be trademarked, see Barrows, 6 R. I., at 438, or did not indicate whether the rule 

differed for dead versus living individuals, see Stephano Bros., 238 F., at 

92–93. Indeed, “[t]he authorities [were] somewhat meagre” as to “the 

rule . . . . where the notable person [was] still alive,” Pike 100, undercutting the notion that the common law contained a clear rule one way or 

the other. 
Cite as: 602 U. S. ____ (2024) 13 

BARRETT, J., concurring in part 

law would already prevent those uses of another’s name as 

a trademark. On the contrary, they seemed most concerned 

about the types of marks that the common law appeared to 

allow. See supra, at 11. 

It is thus difficult to say that the names clause is constitutional solely because of its historical pedigree.6 Perhaps

recognizing that reality, the Court relies not only on the 

purported common-law tradition restricting the trademarking of names, but also points to the names clause’s relation

to trademark’s historical purposes. Ante, at 16–18. The 

latter argument is quite similar to my own—I agree that 

the names clause helps to ensure that the proposed mark 

functions as a source identifier and to guard against reputational consequences, serving trademark’s historical goals. 

B 

But I cannot agree with the Court that the existence of a 

“common-law tradition” and a “historical analogue” is sufficient to resolve this case. Ante, at 19–20. Even if the 

Court’s evidence were rock solid, I still would not adopt this

approach. To be sure, tradition has a legitimate role to play

in constitutional adjudication. For instance, the longstanding practice of the political branches can reinforce our understanding of the Constitution’s original meaning. Consumer Financial Protection Bureau v. Community 

Financial Services Assn. of America, Ltd., 601 U. S. 416, 

442 (2024) (KAGAN, J., concurring). A course of deliberate 

practice might liquidate ambiguous constitutional provisions. See The Federalist No. 37, p. 229 (C. Rossiter ed. 

—————— 6The Court characterizes my critique as a demand for a “historical 

twin.” Ante, at 19, n. 4. On the contrary, my point is that the Court has

not cleared the “historical analogue” bar it sets for itself. The existence 

of closely analogous historical counterexamples surely complicates the 

argument that “history and tradition” alone establish the clause’s constitutionality. By presenting its evidence as conclusive, “the Court overclaims.” Samia v. United States, 599 U. S. 635, 657 (2023) (BARRETT, J., 

concurring in part and concurring in judgment). 
 

 

14 VIDAL v. ELSTER 

BARRETT, J., concurring in part 

1961). The views of preceding generations can persuade, 

and, in the realm of stare decisis, even bind. But tradition 

is not an end in itself—and I fear that the Court uses it that 

way here.

The Court does not (and could not) argue that the late19th and early-20th century names-restriction tradition 

serves as evidence of the original meaning of the Free 

Speech Clause. Cf. Samia v. United States, 599 U. S. 635, 

655–656 (2023) (BARRETT, J., concurring in part and concurring in judgment). Nor does it treat the history it recites

as a persuasive data point. Instead, it presents tradition

itself as the constitutional argument; the late-19th and

early-20th century evidence is dispositive of the First 

Amendment issue. Yet what is the theoretical justification 

for using tradition that way?

Relying exclusively on history and tradition may seem

like a way of avoiding judge-made tests. But a rule rendering tradition dispositive is itself a judge-made test. And I 

do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle. (After all, there is a tradition of the latter approach 

too. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 421 

(1819) (adopting standard for application of the Necessary 

and Proper Clause).) In the course of applying broadly 

worded text like the Free Speech Clause, courts must inevitably articulate principles to resolve individual cases. I do 

not think we can or should avoid doing so here. As I explained in Part I–B, the takeaway from history is that content-based trademark restrictions have long been central to

trademark’s purpose of facilitating source identification, 

and they have not posed a serious risk of censorship. This 

principle offers a generally applicable way to think about 

whether registration restrictions “‘play well with the First 

Amendment.’” Ante, at 12. We should bring clarity to the 

law by adopting it.

In my view, the Court’s laser-like focus on the history of 
Cite as: 602 U. S. ____ (2024) 15 

BARRETT, J., concurring in part 

this single restriction misses the forest for the trees. It 

gives secondary billing to what I think is the central point: 

that the names clause “reflects trademark law’s historical 

rationale of identifying the source of goods.” Ante, at 16. I 

see no reason to proceed based on pedigree rather than 

principle. Besides, as the Court admits, its approach

merely delays the inevitable: Eventually, the Court will encounter a restriction without a historical analogue and be 

forced to articulate a test for analyzing it. Ante, at 19–20. 

* * * 

Trademark protection cannot exist without content discrimination. So long as content-based registration restrictions reasonably relate to the purposes of the trademark system, they are constitutional. The names clause 

clears this bar. I respectfully concur in part. 
 

 

_________________ 

_________________ 

Cite as: 602 U. S. ____ (2024) 1 

SOTOMAYOR, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 22–704 

KATHERINE K. VIDAL, UNDER SECRETARY OF 

COMMERCE FOR INTELLECTUAL PROPERTY 

AND DIRECTOR, UNITED STATES PATENT 

AND TRADEMARK OFFICE, PETITIONER 

v. STEVE ELSTER 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FEDERAL CIRCUIT 

[June 13, 2024] 

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and 

JUSTICE JACKSON join, concurring in the judgment. 

This case involves a free-speech challenge to a viewpointneutral, content-based condition on trademark registration. In deciding how to evaluate this kind of challenge, the 

Court faces two options: Either look only to the history and 

tradition of the condition, or look to trademark law and settled First Amendment precedent. The first option, which

asks whether the history of a particular trademark registration bar plays well with the First Amendment, leads this

Court into uncharted territory that neither party requests.

The other guides it through well-trodden terrain. I would 

follow the well-trodden path.

In assessing the constitutionality of the names clause and 

other trademark registration provisions, I would rely on 

this Court’s tried-and-tested First Amendment precedent.

This Court has held in a variety of contexts that withholding benefits for content-based, viewpoint-neutral reasons 

does not violate the Free Speech Clause when the applied 

criteria are reasonable and the scheme is necessarily content based. That is the situation here. Content discrimination is an inescapable feature of the trademark system, and 
 

 

2 VIDAL v. ELSTER 

SOTOMAYOR, J., concurring in judgment 

federal trademark registration only confers additional benefits on trademark holders. The denial of trademark registration is therefore consistent with the First Amendment if 

it turns on “reasonable, viewpoint-neutral content regulations.” Iancu v. Brunetti, 588 U. S. 388, 424 (2019) 

(SOTOMAYOR, J., concurring in part and dissenting in part).

Because the names clause satisfies that test, I would uphold 

the constitutionality of the provision on that ground alone. 

I 

A 

This case is the latest in a trilogy of challenges to the constitutionality of trademark registration bars in the Lanham 

Act. See id., at 390; Matal v. Tam, 582 U. S. 218, 223 

(2017). In the first two cases, the Court struck down as unconstitutional certain registration bars that discriminated 

based on viewpoint. Ante, at 4–5 (majority opinion) (citing 

Brunetti, 588 U. S., at 390, 393–394; Tam, 582 U. S., at 243 

(plurality opinion); id., at 248–249 (Kennedy, J., concurring

in part and concurring in judgment). Because those cases 

involved viewpoint-based provisions, there was no occasion 

to consider the framework for “how to evaluate viewpointneutral restrictions on trademark registration.” Brunetti, 

588 U. S., at 398, n. This case, by contrast, presents that 

very circumstance—a viewpoint-neutral, content-based

condition on trademark registration. 

The names clause prohibits registration of a mark that

“[c]onsists of or comprises a name . . . identifying a particular living individual except by his written consent.” 15 

U. S. C. §1052(c). No one disputes that the names clause is 

content based. Its application turns, after all, on the mark’s 

content, i.e., whether it identifies by name a particular living individual without his or her written consent. See City 

of Austin v. Reagan Nat. Advertising of Austin, LLC, 596 

U. S. 61, 69 (2022) (explaining that a regulation is content 

based if its application turns on “‘the topic discussed or the 
Cite as: 602 U. S. ____ (2024) 3 

SOTOMAYOR, J., concurring in judgment 

idea or message expressed’”). The names clause is also 

viewpoint neutral because it is agnostic as to how the name

in the mark is being used and does not “distinguis[h] between two opposed sets of ideas.” Brunetti, 588 U. S., at 

394; see ante, at 5 and n. 2 (majority opinion) (holding that 

the clause is viewpoint neutral both on its face and in practice). On these points, and on the conclusion that the names 

clause is constitutional, we all agree. Our disagreement

boils down primarily to methodology. 

B 

Those familiar with this trilogy of First Amendment challenges to the Lanham Act may be surprised, perhaps even

disappointed, to learn that, although this case presents the 

“situation we did not address in Tam or Brunetti,” the Court 

has shied away from setting forth a “framework ‘for deciding free speech challenges to provisions of the Lanham 

Act.’” Ante, at 6 (majority opinion) (quoting Tam, 582 U. S., 

at 245, n. 17 (plurality opinion)). Yet perhaps the biggest

surprise (and disappointment) of today’s five-Justice majority opinion is its reliance on history and tradition as a dispositive test to resolve this case.

In holding that the names clause is constitutional, that

majority asserts that one need look only to the “history and 

tradition” of the clause and “no further.” Ante, at 12. Why 

look to history and tradition alone? Because, the majority 

says, it “is sufficient to conclude that the names clause . . . 

is compatible with the First Amendment.” Ibid. Considering this Court has never applied this kind of history-andtradition test to a free-speech challenge, and that “[n]o one 

briefed, argued, or even hinted at the rule that the Court 

announces today,” one would have expected a more satisfactory explanation. Lozman v. Riviera Beach, 585 U. S. 87, 

102 (2018) (THOMAS, J., dissenting). There is none 

grounded in our First Amendment doctrine and precedent.

JUSTICE BARRETT questions the majority’s because-it-is-
 

 

4 VIDAL v. ELSTER 

SOTOMAYOR, J., concurring in judgment 

sufficient explanation in part by claiming that, if anything, 

the Court’s evidence “does not establish a historical analogue for the names clause.” Ante, at 1 (opinion concurring 

in part). That may well be true. Yet this back-and-forth 

highlights the indeterminacy of the Court’s history-and-tradition inquiry, which one might aptly describe as the equivalent of entering a crowded cocktail party and looking over 

everyone’s heads to find your friends. Cf. Conroy v. Aniskoff, 507 U. S. 511, 519 (1993) (Scalia, J., concurring in 

judgment). To make matters worse, the five-Justice majority that undertakes this tradition-as-dispositive inquiry 

found its friends in a crowded party to which it was not invited. That majority has drawn conclusive inferences from

its historical evidence, all without any guidance from the 

litigants or the court below. That stark departure from settled principles of party presentation and adversarial testing

in favor of in-chambers historical research by nonhistorians

raises more questions than answers. Cf. Maslenjak v. 

United States, 582 U. S. 335, 354 (2017) (GORSUCH, J., 

joined by THOMAS, J., concurring in part and concurring in

judgment) (“[T]he crucible of adversarial testing on which

we usually depend, along with the experience of our

thoughtful colleagues on the district and circuit benches,

could yield insights (or reveal pitfalls) we cannot muster

guided only by our own lights”).

It is not appropriate, much less necessary, to find

common-law analogues to settle the constitutionality of the

names clause or any other trademark registration provision. I agree with JUSTICE BARRETT that, even if the majority’s historical “evidence were rock solid,” there is no good 

reason to believe that “hunting for historical forebears on a 

restriction-by-restriction basis is the right way to analyze 

the constitutional question.” Ante, at 1, 13. The majority

attempts to reassure litigants and the lower courts that a 

“history-focused approac[h]” here is sensible and workable, 

by citing to New York State Rifle & Pistol Assn., Inc. v. 
Cite as: 602 U. S. ____ (2024) 5 

SOTOMAYOR, J., concurring in judgment 

Bruen, 597 U. S. 1 (2022). Ante, at 19, n. 4. To say that

such reassurance is not comforting would be an understatement. One need only read a handful of lower court decisions

applying Bruen to appreciate the confusion this Court has 

caused. Cf. Brief for Second Amendment Law Scholars as 

Amici Curiae in United States v. Rahimi, O. T. 2023, No. 

22–915, pp. 4–6 (discussing examples of confusion among 

lower courts applying Bruen).

Ultimately, I am reluctant to go further down this precipice of looking for questionable historical analogues to resolve the constitutionality of Congress’s legislation. To borrow Justice Scalia’s criticism from a different context, such 

hunting “far into the dimmy past” is not just “a waste of 

research time and ink” but also “a false and disruptive lesson in the law . . . that . . . condemns litigants (who, unlike

us, must pay for it out of their own pockets) to subsidizing 

historical research by lawyers.” Conroy, 507 U. S., at 519 

(opinion concurring in judgment). I would instead apply 

this Court’s First Amendment precedent, just as the parties 

did in arguing this case. 

C 

The most straightforward way to resolve this and other

free-speech challenges to trademark registration criteria is

through a doctrinal framework drawn from this Court’s 

First Amendment precedent. The analysis should proceed 

in two steps. First ask whether the challenged provision 

targets particular views taken by speakers on a given subject. If the trademark registration bar is viewpoint based, 

it is presumptively unconstitutional and heightened scrutiny applies; if it is viewpoint neutral, however, the trademark registration bar need only be reasonable in light of 

the purpose of the trademark system. Specifically, the

trademark registration bar must reasonably serve its purpose of identifying and distinguishing goods for the public. 

If the challenged provision is both viewpoint neutral and 
 

 

6 VIDAL v. ELSTER 

SOTOMAYOR, J., concurring in judgment 

reasonable, then it does not violate the Free Speech Clause. 

II 

A 

This Court has applied strict constitutional scrutiny to 

viewpoint-neutral content classifications on some occasions, and thus treated them as “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). 

It has declined to do so, however, when any “risk” that such 

classification “will impermissibly interfere with the marketplace of ideas” is “attenuated”; that is, when “‘there is 

no realistic possibility that official suppression of ideas is

afoot.’” Davenport v. Washington Ed. Assn., 551 U. S. 177, 

188–189 (2007) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 

390 (1992)). In those cases, “the difference between 

viewpoint-based and viewpoint-neutral content discrimination can be decisive.” Brunetti, 588 U. S., at 421 (opinion of 

SOTOMAYOR, J.). This is such a case: Whereas the denial of 

trademark registration under viewpoint- and content-based

criteria is presumptively unconstitutional under heightened scrutiny, a denial under viewpoint-neutral, contentbased criteria is not constitutionally suspect and does not 

trigger the same exacting scrutiny. See ante, at 3–12 (majority opinion).

In explaining why the difference is decisive in this context, the Court and JUSTICE BARRETT emphasize that

trademarks are inherently content based, yet have long coexisted with the First Amendment. Ante, at 6–11 (majority 

opinion); ante, at 2–7 (opinion of BARRETT, J.). I agree with

the use of historical evidence to support this point. History 

informs the understanding that content-based distinctions 

are an intrinsic feature of trademarks, and that the marks’ 

purpose is to identify and distinguish goods for the public. 

See ante, at 2–6 (opinion of BARRETT, J.). That use of history is legitimate and in fact valuable, just as evidence of a 
Cite as: 602 U. S. ____ (2024) 7 

SOTOMAYOR, J., concurring in judgment 

longstanding practice of government can inform the meaning of constitutional provisions in appropriate cases. See 

ante, at 13–15 (opinion of BARRETT, J.); cf. Consumer Financial Protection Bureau v. Community Financial Services 

Assn. of America, Ltd., 601 U. S. 416, 442 (2024) (KAGAN, 

J., concurring); The Pocket Veto Case, 279 U. S. 655, 689 

(1929). That is not how the five-Justice majority is using 

history, however. The majority instead treats a disputed 

(and isolated) account of the history and tradition of the 

names clause as determinative of its constitutionality. Cf. 

ante, at 12–20 (applying new history-and-tradition test). It 

is that “judge-made test” that is unmoored from constitutional text and precedent, and which I repudiate as unhelpful. Ante, at 14 (opinion of BARRETT, J.).

Even then, history does not give us the full story. The 

assertion that content-based distinctions in trademark law 

have long played well with the First Amendment, although

true, requires a more fulsome explanation, particularly as

applied to the trademark registration system. The primary

reason why viewpoint-neutral trademark registration criteria easily coexist with the Free Speech Clause is that they 

do not burden expression. Instead, a denial of registration

withholds ancillary benefits that might bolster someone’s

expression. When a government confers a benefit that supports some forms of expressive activity, the decision to withhold that benefit on viewpoint-neutral grounds “‘cannot be

equated with the imposition of a “penalty” on that activity,’” 

which would trigger heightened scrutiny. Rust v. Sullivan, 

500 U. S. 173, 193 (1991) (quoting Harris v. McRae, 448 

U. S. 297, 317, n. 19 (1980)). 

1 

“The First Amendment protects the freedom of speech; it 

does not require the Government to give aid and comfort to

those using” particular “modes of expression.” Brunetti, 

588 U. S., at 401 (ROBERTS, C. J., concurring in part and 
 

8 VIDAL v. ELSTER 

SOTOMAYOR, J., concurring in judgment 

dissenting in part). Indeed, this Court has recognized repeatedly that the First Amendment permits governmental 

bodies to rely on reasonable, viewpoint-neutral, contentbased criteria when deciding to benefit certain communicative activities. See, e.g., National Endowment for Arts v. 

Finley, 524 U. S. 569, 587–588 (1998) (“[T]he Government

may allocate competitive funding according to criteria that

would be impermissible were direct regulation of speech or

a criminal penalty at stake”).

As I explained in Brunetti, and the Solicitor General argues in this case, various strands of precedent support this 

point, ranging from cases about limited public (or nonpublic) forums to those involving monetary subsidies and noncash governmental programs (such as the collection of fees 

by public-sector labor unions). See 588 U. S., at 422–424 

(collecting cases); Brief for Petitioner 16–21 (same).1 In 

these cases, content discrimination was necessarily a part

of the governmental initiative at issue, yet the initiative

was not subject to the constitutional straitjacket of heightened scrutiny. See, e.g., Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 49 (1983) (noting that content 

discrimination is “[i]mplicit in the concept of the nonpublic 

forum,” yet declining to apply heightened scrutiny). That 

was so because each “initiative . . . supported some forms of 

expression without restricting others. Some speakers were

better off, but no speakers were worse off.” Brunetti, 588 

U. S., at 423 (opinion of SOTOMAYOR, J.).

These cases “may not be controlling [here] in a strict 

—————— 1According to JUSTICE THOMAS (who is joined by two Justices), I focus

primarily on cash-subsidy and union-dues cases. A closer look at this 

opinion and the cases that I cite will reveal that is not exactly true. As I 

mentioned in Brunetti, and both the Government and JUSTICE BARRETT 

assert in this case, limited public (or nonpublic) forum cases also constitute helpful analogies for arriving at the generally applicable principles

that should apply to this kind of case. See Brief for Petitioner 18–19; 

accord, ante, at 7–9, and n. 2 (opinion of BARRETT, J.). 
Cite as: 602 U. S. ____ (2024) 9 

SOTOMAYOR, J., concurring in judgment 

sense, yet they do provide some instruction.” Legal Services 

Corporation v. Velazquez, 531 U. S. 533, 544 (2001). They

generally stand for the proposition that the Free Speech 

Clause permits governmental bodies to impose a “reasonable, viewpoint-neutral limitation” on a “state-bestowed entitlement.” Davenport, 551 U. S., at 189; see, e.g., Christian 

Legal Soc. Chapter of Univ. of Cal., Hastings College of Law 

v. Martinez, 561 U. S. 661, 669 (2010) (upholding “reasonable, viewpoint-neutral condition” on access to government 

initiative); Ysursa v. Pocatello Ed. Assn., 555 U. S. 353, 355 

(2009) (same); Cornelius v. NAACP Legal Defense & Ed. 

Fund, Inc., 473 U. S. 788, 808 (1985) (same); Regan v. Taxation With Representation of Wash., 461 U. S. 540, 550 

(1983) (same).2 

2 

Someone with a federally registered mark enjoys certain

benefits by virtue of that registration. Even so, free speech 

is not abridged when these benefits are denied to someone 

based on reasonable, viewpoint-neutral criteria. 

Consider three basic tenets of trademark law, each of 

which the Court rightly acknowledges. See ante, at 1–2. 

First, “every trademark’s ‘primary’ function” is to tell the 

—————— 2 JUSTICE THOMAS responds that these precedents are an “ill fit” for the 

names clause because this case does not involve “cash subsid[ies],” “union dues,” or a “limited public forum.” Ante, at 20–21. That response 

misses the entire point. In the past, this Court has relied on limitedpublic-forum cases as instructive, even if not controlling, when resolving 

constitutional challenges to governmental subsidies (and vice versa). 

See, e.g., Legal Services Corporation, 531 U. S., at 544. The Court relied 

on these decisions for their underlying legal principle only. That is, after 

all, how law works. That the trademark registration system does not 

involve cash subsidies, union dues, or a limited public forum is immaterial for purposes of the analysis in this opinion. As just discussed, the 

legal principle in each of these cases is that the Constitution permits reasonable, viewpoint-neutral limitations on speech where, as here, the

Government only benefits certain forms of expression through initiatives 

that are intrinsically content based without restricting other expression. 
 

 

10 VIDAL v. ELSTER 

SOTOMAYOR, J., concurring in judgment 

public who is responsible for a particular product, that is,

to serve as a source identifier. Jack Daniel’s Properties, Inc. 

v. VIP Products LLC, 599 U. S. 140, 146 (2023). Although

trademarks may also communicate a “message,” that message is only incidental to “what a trademark is and does.” 

Id., at 145–146. Second, “federal law does not create trademarks.” B&B Hardware, Inc. v. Hargis Industries, Inc., 575 

U. S. 138, 142 (2015). Rather, by virtue of common law, the 

first person to use a “distinct mark in commerce . . . acquires rights to that mark,” including exclusivity rights to

“preven[t] others from using the mark.” Ibid. Third, federal registration provides increased trademark protection

only by conferring additional benefits on trademark holders. See ibid. For example, it (1) provides “nationwide constructive notice of the registrant’s claim of ownership of the 

mark,” which forecloses some defenses in infringement actions; and (2) constitutes “prima facie evidence” of the

mark’s validity and exclusivity in commerce. Ante, at 2 (citing 15 U. S. C. §§1072, 1115(a)). To be sure, nothing in the 

Constitution requires these predominantly commercial

benefits. 

One conclusion follows from these three principles: By 

prohibiting trademark registration for viewpoint-neutral, 

content-based reasons, Congress simply denies an applicant the opportunity to include his mark on a list and secure

“certain benefits” that are “useful in infringement litigation.” Jack Daniel’s, 599 U. S., at 146. The risk of speech

suppression is therefore “attenuated” because denying a 

trademark holder these ancillary benefits does not prevent 

him from using his mark in commerce or communicating

any message incidental to the mark. Davenport, 551 U. S., 

at 188; see Brunetti, 588 U. S., at 421–422 (opinion of

SOTOMAYOR, J.); id., at 401 (opinion of ROBERTS, C. J.) 

(“Whether . . . marks can be registered does not affect the

extent to which their owners may use them in commerce to

identify goods. No speech is being restricted; no one is being 
Cite as: 602 U. S. ____ (2024) 11 

SOTOMAYOR, J., concurring in judgment 

punished. The owners of such marks are merely denied certain additional benefits associated with federal trademark 

registration”). 

B 

Now consider the facts of this case. Respondent Steve Elster wants to sell shirts with the phrase TRUMP TOO 

SMALL on them. He also wants increased trademark protection by federally registering the phrase. In the registration request, Elster explained that the phrase “invokes a 

memorable exchange between President Trump and Senator Marco Rubio from a 2016 presidential primary debate, 

and aims to ‘convey[] that some features of President 

Trump and his policies are diminutive.’” In re Elster, 26 

F. 4th 1328, 1330 (CA Fed. 2022) (alteration in original). 

When the U. S. Patent and Trademark Office rejected the

registration request, it denied Elster the opportunity to secure the Government-bestowed benefits associated with 

registration. Critically, the denial did not prevent Elster

from communicating his message. It also did not restrict 

his preferred mode of expression. Elster can still sell shirts 

displaying the same message. Elster could also use a different phrase (such as ELSTER APPAREL) as a source

identifier to obtain the desired benefits of registration while 

continuing to sell shirts with his preferred message across

the front. See Tr. of Oral Arg. 23–24 (discussing “Elster 

Apparel” example). Put simply, the denial only barred Elster from registering a mark asserting exclusive rights in

another person’s name without their written consent. 

III 

A 

Because trademark registration criteria limit statutory

benefits in a necessarily content-based scheme, the First 

Amendment requires the criteria to be viewpoint neutral 

and reasonable. Supra, at 5–9; Brunetti, 588 U. S., at 424 
 

 

 

 

12 VIDAL v. ELSTER 

SOTOMAYOR, J., concurring in judgment 

(opinion of SOTOMAYOR, J.). From this Court’s analogous

nonpublic-forum and limited-public-forum cases, it is clear 

that “reasonable” means that the challenged provision must 

reasonably serve the purpose of the content-based scheme.

On this point, I agree with JUSTICE BARRETT that the challenged trademark registration criteria must be “reasonable 

in light of the trademark system’s purpose of facilitating 

source identification.” Ante, at 2; see ante, at 7–9. 

In Cornelius, for example, the Court confronted a freespeech challenge to the Government’s decision to exclude 

“legal defense and political advocacy organizations from

participation in the Combined Federal Campaign (CFC or

Campaign), a charity drive aimed at federal employees.” 

473 U. S., at 790. After concluding that the CFC was a nonpublic forum “not dedicated to general debate or the free

exchange of ideas,” the Court held that the First Amendment permits content- and speaker-based “distinctions” so 

long as they are “reasonable in light of the purpose served 

by the forum and are viewpoint neutral.” Id., at 806, 811. 

Importantly, the “decision to restrict access . . . need not be 

the most reasonable or the only reasonable limitation.” Id., 

at 808–809. Based on this test, the Court ultimately concluded that the Government acted reasonably, and consistent with the Free Speech Clause, in “limit[ing] participation in the CFC in order to minimize disruption to the 

federal workplace, to ensure the success of the fundraising

effort, or to avoid the appearance of political favoritism

without regard to the viewpoint of the excluded groups.” 

Id., at 813.

 JUSTICE THOMAS (joined by two Justices) rejects this test,

implying that it is subjective because it supposedly turns on

what a given judge might think is reasonable. Ante, at 20. 

That statement misunderstands the inquiry. As just discussed, a trademark registration condition is reasonable if

it serves as a source identifier, a concept that is familiar to 

anyone who has worked on a trademark case. See Jack 
 

 

Cite as: 602 U. S. ____ (2024) 13 

SOTOMAYOR, J., concurring in judgment 

Daniel’s, 599 U. S., at 146; 1 J. McCarthy, Trademarks and 

Unfair Competition §3:1 (5th ed. 2023). More generally,

this kind of reasonableness inquiry appears in every limited 

public (or nonpublic) forum case. Far from being subjective

and unworkable, this kind of test goes to the very core of

what judges and lawyers do every day. When contrasted to 

their preferred history-driven approach, the criticism of the 

reasonableness inquiry is even more unpersuasive. As discussed above, the history-and-tradition approach is not just

flawed as a matter of first principles, but also highly indeterminate and unfamiliar to judges and litigants in this

area of the law. See supra, at 3–5. How much history is

enough to clear the historical analogue bar the five-Justice 

majority set up? What does that look like in this context? 

When it comes to subjectivity, their preferred approach empowers judges to pick their friends in a crowded party. See 

supra, at 4. When faced with the two options, I choose the 

test that is rooted in this Court’s First Amendment doctrine 

and precedent, is attuned to what judges and lawyers are 

properly trained to do, and does not limit Congress from

dealing with modern-day conditions based on the foresight 

of yesterday’s generation. 

B 

“Content-based criteria for trademark registration do not 

abridge the right to free speech so long as they reasonably 

relate to the preservation of the markowner’s goodwill and 

the prevention of consumer confusion,” “goals” that a “particular restriction will serve . . . if it helps ensure that registered marks actually function as source identifiers.” Ante, 

at 8 (opinion of BARRETT, J.) The names clause easily 

passes this reasonableness test. Source identification is, after all, at the heart of what the names clause does. 

Imagine someone who wants to manufacture and sell the 

best bats and catchers’ mitts in baseball. Unsurprisingly,

that person wants to use the names of Derek Jeter and 
 

 

14 VIDAL v. ELSTER 

SOTOMAYOR, J., concurring in judgment 

Jorge Posada to capitalize on their goodwill to promote the 

products. So, the manufacturer lands on JETER OUT OF 

THE PARK and CATCH LIKE POSADA as marks. The 

names clause bars registration of these phrases without the 

named individuals’ written consent. It does so for good reason: Jeter and Posada may not want consumers to 

misattribute these products to them, just as consumers may 

not want to buy products under the false pretense that 

these goods somehow are connected to the players.3 Source 

identification is especially important when, for example, 

the named individual produces similar products—say,

Jeter and Posada sell their own baseball goods under the 

marks MR. NOVEMBER BATS BY JETER and CHAMP’S 

MITTS BY POSADA. They would not want manufacturers 

to dilute the commercial value of their name and reputation. Nor would Jeter and Posada want a Boston Red Sox 

fan to manufacture cheaper goods and use their names to

promote second-rate products. The names clause prevents 

that from happening. 

Congress was entitled to make this legislative judgment. 

The Government, after all, “has a reasonable interest in refraining from lending its ancillary support to marks” that 

use an unconsenting individual’s name for commercial gain. 

Brunetti, 588 U. S., at 425 (opinion of SOTOMAYOR, J.); cf. 

id., at 401 (opinion of ROBERTS, C. J.) (“The Government,

meanwhile, has an interest in not associating itself with 

—————— 3Other Lanham Act provisions prohibit the registration of marks that

deceive or falsely suggest a connection to a person or entity. See 15 

U. S. C. §1052(a). That there is some overlap between the falsesuggestion and names clauses does not change the fact that the names 

clause reasonably serves the purpose of source identification. When 

heightened scrutiny is not in play, Congress is free to use belts and suspenders to support an asserted interest. I therefore also agree with 

JUSTICE BARRETT that “Congress is entitled to make [the] categorical 

judgmen[t] . . . that, on the whole, protecting marks that include another 

living person’s name without consent risks undermining the goals of 

trademark.” Ante, at 9. 
 

Cite as: 602 U. S. ____ (2024) 15 

SOTOMAYOR, J., concurring in judgment 

trademarks whose content is obscene, vulgar, or profane”). 

In sum, the names clause is constitutional because it is a 

viewpoint-neutral, reasonable limitation on a trademark’s

registration. 

* * * 

The Court’s “decision today is narrow,” and its historyand-tradition test is good only for “the relatively simple 

case before us today.” Ante, at 20, 22. Ultimately, all nine

Justices agree that Congress can innovate when it comes to

trademark law, and we further agree that nothing in today’s opinion calls into question the constitutionality of

viewpoint-neutral provisions lacking a historical pedigree.

See ibid.; ante, at 1 (KAVANAUGH, J., concurring in part); 

ante, at 1–2 (opinion of BARRETT, J.); supra, at 3–6. 

For the reasons set forth above, I respectfully concur in 

the judgment.