The Supreme Court is weighing arguments from the Biden Administration in defense of President Trump’s brand. It’s an appeal of a lower court’s ruling allowing a lawyer, Steve Elster, to trademark the mocking slogan “Trump Too Small” without Mr. Trump’s consent.

The case isn’t a classic First Amendment case, as in the one brought by students at Michigan’s Tri County Middle School. In February, they were told to remove sweatshirts boasting “Let’s Go Brandon,” mocking Mr. Biden, but they’re not seeking a trademark to corner the market on the apparel bearing the phrase.

In oral arguments, the deputy solicitor general, Malcolm Stewart, told the high court that denying the trademark is not a restriction of speech. “Even if Mr. Elster cannot register the mark ‘Trump Too Small,’ he can sell shirts with that slogan. … The living individual clause simply restricts Mister Elster’s ability to assert exclusive rights in another person’s name.”

The justices all indicated that they saw the case in line with the government’s view. Justices Clarence, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson all expressed concerns about getting too far down what Justice Gorsuch called “a very difficult and fraught road” by defining trademark as a free speech right.

Justice Thomas asked Mr. Elster’s attorney, Jonathan Taylor, if his client could “make the shirts or mugs or whatever he wants to make now unregistered — without registration?” The attorney responded that he can, but argued that Mr. Elster “is being denied important legal rights and benefits” by the denial of trademark.

“The question is, ‘Is this an infringement on speech?’” Justice Sonia Sotomayor said, “and the answer is no. He can sell as many shirts with this saying, and the government’s not telling him he can’t use the phrase. He can’t sell it anywhere he wants.  There’s no limitation on him selling it; so, there’s no traditional infringement.?

The U.S. Patent and Trademark Office denied Mr. Ester’s 2018 application for the slogan which he planned to print on T-shirts and offer for sale. The Nine will now have the final say on a question that pits the First Amendment against the right to own one’s name.

“Trump Too Small” emerged from an insult by the Republican from Florida, Senator Rubio, at a Virginia rally for his 2016 presidential run. Responding to Mr. Trump nicknaming him “Little Marco,” Mr. Rubio counterattacked. 

“I’ll admit he’s taller than me,” Mr. Rubio said of Mr. Trump. “He’s like 6’2”, which is why I don’t understand why his hands are the size of someone who is 5’2”, and you know what they say about men with small hands? You can’t trust them.”

Mr. Trump fired back at a rally, noting that he stands an inch taller than Mr. Rubio stated and “I’ve always heard people say, ‘Donald, you have the most beautiful hands.’”  

The insult outlasted Mr. Rubio’s presidential campaign and Mr. Ester wanted to monetize it by seeking exclusive rights over “Trump Too Small.” The attorney told the high court that the double entendre criticizes “the smallness of Donald Trump’s overall approach to governing.” 

Despite Mr. Ester’s argument that he was exercising his First Amendment rights, the Trademark Office rejected his application. They did so by citing a law that protects a person’s name from “being exploited for another’s commercial gain.”

The U.S. Court of Appeals for the Federal Circuit reversed the Trademark Office ruling in February 2022. “The government has no legitimate interest in protecting the privacy of President Trump,” Judge Timothy Dyk wrote in the case, “the least private name in American life.” 

Mr. Biden’s undersecretary of commerce for intellectual property and director of the Patent and Trademark Office, Katherine K. Vidal, asked the Supreme Court to reinstate the denial last November; they agreed to take the case in June. 

In a brief for Vidal v. Elster, Mr. Biden’s solicitor general, Elizabeth Prelogar, cited the Lanham Act of 1946 in Mr. Trump’s defense. The Act “protects the owner of a federally registered mark against the use of similar marks if such use is likely to result in consumer confusion, or if the dilution of a famous mark is likely to occur.”

The Trademark Office said it has applied Lanham when rejecting positive slogans including “I Stand for Trump” and “Better With Biden.” Mr. Elster countered with other examples. “Joe 2020” and “Hillary For America” were registered, he said, but “No Joe in 2024” and “Hillary for Prison 2016” were rejected.

The Supreme Court invalidated two trademark laws earlier this year, ruling that they infringed on rights by allowing broad for-profit use of brands under the umbrella of the First Amendment. The Biden administration argues that Lanham doesn’t restrict speech based on opinion and that it therefore invalidates Mr. Elster’s application.

Mr. Trump is not a party to Vidal v. Elster, but the Biden administration has taken up the case protecting his brand. Seen in the light of putting law ahead of partisanship, whichever way the Supreme Court rules, the attempt itself will be a victory for a more unified America — hands down.