Leveraging an insult used by then-Republican presidential candidate Marco Rubio against fellow candidate Donald Trump, a California lawyer seeks to copyright the phrase “Trump Too Small” to mock the former president, the New York Times reports.

During a 2016 Republican candidate debate, Rubio noted Trump’s smaller-than-normal hands, commenting, “And you know what they say about guys with small hands.”  Of course, despite Stormy Daniels describing his phallus as a tiny mushroom, Trump claimed he “never had any complaints” about his manhood, but also never claimed he got any compliments.

California lawyer Steve Elster said he wants to use the phrase “too small” to describe Trump’s policies, emblazoning merchandise with phrases like “Trump Too Small on Civil Rights” or “Trump Too Small on Fighting Russia.”  A lower court ruled against Elster citing the Patent and Trademark Office’s longtime ban on “identifying a particular living individual except by his written consent.”  However, an appeals court ruled that because Trump is a public figure and the requested phrase is political speech, canceling the trademark would be an unreasonable limitation on Elster’s First Amendment right. 

“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” Federal Appeals Court Judge Timothy B. Dyk wrote in the decision for the three-judge panel.  “As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”