But in this instance, a federal appeals court said California lawyer Steve Elster had a free speech right to mock Trump as “too small” on T-shirts and hats.

Elster argued the trademark would be used as “political commentary” targeted at the former president by invoking a double entendre from a 2016 Republican debate. Sen. Marco Rubio (R-Fla.) commented that Trump had small hands, “and you know what they say about guys with small hands.”

The Patent and Trademark Office denied Elster’s request for a trademark, but the federal circuit court disagreed and said the 1st Amendment protected his right to comment on the former president.

The Biden administration’s Solicitor Gen. Elizabeth Prelogar urged the Supreme Court to hear the government’s appeal and reject the trademark request. “For more than 75 years, Congress has directed the U.S. Patent and Trademark Office to refuse the registration of trademarks that use the name of a particular living individual without his written consent,” she said.

On Monday, the court said it would the hear the case of Vidal vs. Elster in the fall.