Vidal v. Elster: The 2024 Supreme Court Case That Says You Can't Trademark Someone Else's Name

If you've ever picked a business name, you've probably had a moment where you wondered whether you could use someone famous's name in it. Could you sell "Lebron James BBQ Sauce"? Could a clothing brand register "Taylor Swift Style"? Could a political shirt manufacturer trademark "Trump Too Small"?

The last question got a Supreme Court answer in June 2024. In Vidal v. Elster, the Court unanimously held that the Lanham Act's Section 2(c) — the "names clause" that prohibits federal registration of a mark identifying a particular living individual without that person's written consent — does not violate the First Amendment. The holding is narrow, the practical effect is mild, and the underlying rule is one every small-business owner choosing a name should understand.

This guide walks through what the case actually decided, why it's different from the previous two Supreme Court trademark First Amendment cases (which went the other way), and what it means for naming a Wisconsin business.

The Statute at the Center of the Case

Section 2(c) of the Lanham Act, codified at 15 U.S.C. § 1052(c), reads (in relevant part):

"No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it — ... (c) Consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent ..."

The clause has been on the books since 1946. It does two things: it gives a kind of trademark-style protection to a person's identity, and it prevents one business from misleadingly claiming endorsement or affiliation with someone famous. The "particular living individual" language matters — the clause doesn't apply to deceased people, and it doesn't apply to common names where the public wouldn't recognize any particular person.

The Facts

Steve Elster applied to register TRUMP TOO SMALL as a federal trademark for shirts (International Class 25). The phrase comes from a 2016 Republican primary debate exchange between Senator Marco Rubio and then-candidate Donald Trump about hand size. Elster wanted the mark to commercialize political commentary critical of Trump.

The USPTO refused registration under Section 2(c) because the mark identifies a particular living individual (Donald Trump) and Elster had not obtained Trump's written consent. The Trademark Trial and Appeal Board (TTAB) affirmed the refusal.

The Federal Circuit reversed the TTAB. It held that Section 2(c) is a content-based restriction on speech and could not survive even intermediate First Amendment scrutiny as applied to political commentary. The government appealed to the Supreme Court.

What the Supreme Court Held

The Court reversed the Federal Circuit. All nine justices agreed that Section 2(c) is constitutional — but they splintered on why, producing four separate writings despite being unanimous in the judgment.

Justice Thomas wrote the opinion of the Court, joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett. That majority held that the names clause does not violate the First Amendment, reasoning that:

• Section 2(c) is content-based — it turns on whether a mark identifies a particular living person.
• But Section 2(c) is viewpoint-neutral — it blocks registration regardless of whether the mark praises, criticizes, mocks, or is neutral about the named person.
• Heightened (strict) scrutiny does not automatically apply to a content-based trademark restriction, because trademark registration is a benefit tied to a system that has always drawn content distinctions.

On the deeper question of what makes a viewpoint-neutral, content-based trademark bar constitutional, the Court fractured into three camps:

• Justice Thomas's plurality (only Chief Justice Roberts and Justices Alito and Gorsuch joined this part) would have rested the result on history and tradition alone — a long lineage of common-law and statutory restrictions on using another person's name in a mark. This reasoning commanded only four votes, so it is a plurality, not a holding.
• Justice Kavanaugh, joined by Chief Justice Roberts, concurred in part. He agreed the clause is constitutional but wrote that a viewpoint-neutral, content-based trademark restriction "might well be constitutional even absent" a historical pedigree — a question for a future case. (He joined the whole opinion except the history-only Part III.)
• Justice Barrett, joined by Justice Kagan (and in part by Justices Sotomayor and Jackson), concurred in part. She rejected leaning on history alone and would evaluate such restrictions by asking whether they are reasonable in light of the trademark system's source-identifying purposes.
• Justice Sotomayor, joined by Justices Kagan and Jackson, concurred only in the judgment, advocating a test grounded directly in trademark law's traditional source-identifying function rather than in history.

Where This Sits in the Recent Supreme Court Trademark Trilogy

Vidal v. Elster is the third Supreme Court case in seven years to address a First Amendment challenge to a Lanham Act provision that refuses registration. The other two went the other way:

The line connecting all three is viewpoint discrimination. Matal and Brunetti involved provisions that turned on whether the mark was offensive or disparaging — the government was, in effect, picking sides. Vidal involves a provision that turns only on whether the mark identifies a particular living person, regardless of whether the message about that person is flattering or critical. The Court drew the constitutional line at viewpoint discrimination, and Section 2(c) sits on the safe side of it.

When Section 2(c) Actually Applies

The clause doesn't apply to every name. The USPTO and the courts ask two questions; Section 2(c) is triggered if the answer to either is yes:

1. 1

   Would the public reasonably recognize the name as referring to a particular living individual?

   "TRUMP" satisfies this for any U.S. consumer. "LEBRON" satisfies it in a basketball context. "TAYLOR SWIFT" satisfies it across consumer goods. "John Smith" does not, because there are too many John Smiths and no particular one is publicly recognized.

2. 2

   Is the individual publicly connected with the business in which the mark is being used?

   This catches the situation where the name itself isn't broadly famous, but the particular person is well-known in the relevant industry. If a niche audiophile-equipment buyer would associate "FOUNDER NAME" with a specific industry insider, the clause can apply within that market.

If neither factor is satisfied, the clause doesn't apply. A surname like "Smith Plumbing" doesn't trigger Section 2(c) even though it's a name, because the public wouldn't connect it to any particular living Smith.

Practical Implications for Small Businesses

The headlines around Vidal v. Elster made it sound like a major change in trademark law. It isn't. Section 2(c) has been on the books since 1946 and has been enforced consistently. The case clarified that the clause is constitutional — meaning the rule didn't change, the rule was just confirmed.

For most small businesses, the practical takeaways are:

• Naming a product after a celebrity without their consent is a non-starter. A "Tom Brady" candle or "Beyoncé Hair Care" line cannot be federally registered without written consent. The federal trademark application will be refused under Section 2(c).
• You may still be able to sell the product. Vidal v. Elster confirmed the refusal of federal registration; Steve Elster can continue selling "Trump Too Small" shirts. Whether other doctrines (right of publicity, false endorsement, defamation) apply to the actual use is a separate question that depends on state law and the facts.
• Companies named after deceased people are unaffected. "Walt Disney," "Milton Hershey," "Henry Ford" — Section 2(c) reaches only living individuals. (Confirm a namesake is actually deceased before relying on this; for a living person the clause applies and consent is required.) State right-of-publicity laws may apply to deceased celebrities in some states, but the federal trademark names clause does not.
• Names that aren't publicly recognized are fine. The two-factor test means a private individual's name — even with their consent — can be registered without Section 2(c) implications, because the clause doesn't trigger in the first place.

For Wisconsin Owners Picking a Business Name

A typical Wisconsin LLC name decision involves a search in the USPTO's Trademark Search system (the cloud-based tool that replaced the retired TESS database in late 2023) alongside the WDFI corporate-records check (see our LLC formation guide for the full clearance flow). The Section 2(c) check is part of that workflow:

1. 1

   Search the proposed name in USPTO Trademark Search

   If a similar mark already exists, you have a Section 2(d) likelihood-of-confusion problem regardless of Section 2(c). Resolve the conflict before moving on.

2. 2

   Ask whether the name identifies a particular living person

   If your business name is "[Owner Name] LLC" using the owner's own name, no Section 2(c) issue. If it's a fanciful name unrelated to any person, no Section 2(c) issue. If it incorporates a third party's name — celebrity, public figure, industry-known person — that's where the analysis starts.

3. 3

   If the answer is yes, get written consent or change the name

   The cleanest path is to pick a different name. Obtaining written consent is technically possible but practically difficult for living celebrities and public figures. The federal trademark refusal is automatic without it.

4. 4

   Separately: ask whether the name has right-of-publicity issues at the state level

   Wisconsin's right of publicity is housed inside its privacy statute, Wis. Stat. § 995.50(2)(b), which bars using a living person's name, portrait, or picture for advertising or trade without their written consent. This is a separate analysis from Section 2(c) and from federal trademark registration generally.

Common Misunderstandings About the Case

• "Vidal v. Elster banned political trademarks." It didn't. The case applies to any mark identifying a particular living individual — political, commercial, or otherwise — and confirmed an existing rule that's applied evenhandedly across viewpoints.
• "The First Amendment doesn't apply to trademarks anymore." Also not what the case held. Matal and Brunetti are still good law for viewpoint-discriminatory restrictions. Vidal is limited to viewpoint-neutral, content-based restrictions, and even those still have to clear some constitutional bar — the Court just didn't define that bar precisely.
• "You can never use a famous person's name in marketing." Federal trademark registration is one thing; commercial use is another. Various uses may be lawful under right-of-publicity, false-endorsement, and First Amendment doctrines even when the registration would be refused. Talk to counsel for any actual use case involving a living person's name.
• "This affects state trademark registration too." Section 2(c) is a federal rule. Wisconsin's trade-name registration under Wis. Stat. ch. 132 has its own rules. State trade-name law generally does not have an equivalent of Section 2(c), though Wisconsin's statutory right of publicity (Wis. Stat. § 995.50(2)(b)) may still apply to commercial use of a living person's identity.

Sources & Case Materials

• Vidal v. Elster, 602 U.S. 286 (2024), No. 22-704 (opinion, PDF)
• Vidal v. Elster — Justia U.S. Supreme Court Center
• Vidal v. Elster — LII Supreme Court Bulletin
• 15 U.S.C. § 1052 — Trademarks registrable on principal register; concurrent registration
• Wis. Stat. ch. 132 — Trademarks, service marks, trade names
• Anchor Filings, USPTO Trademark Fees 2025 Restructure
• Anchor Filings, Wisconsin DBA Guide
• Anchor Filings, How to Form an LLC in Wisconsin

This guide summarizes the holding in Vidal v. Elster, 602 U.S. 286 (2024) and related provisions of the Lanham Act and Wisconsin law. The case and its application continue to develop; verify the current state of the law before relying on a specific application. This article is general information, not legal advice.

Frequently Asked Questions