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.[ 1 ]*

															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.” 60Stat. 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 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
trademark-registration 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 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.[ 2 ] 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
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 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 viewpoint-based 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.[ 3 ]

															Although the names clause is not viewpoint
based, it is 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 content-based 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 “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 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 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 content-based
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, 16Stat.
210–212).[ 4 ]

															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 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 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 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 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
Trade-Marks §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 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 trade-mark 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
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, 16Stat. 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, 36Stat. 918
(emphasis added). And, the Lanham Act later “incorporat[ed] the
principal features of common law trademark protection,” thereby
“declar[ing] . . . existing law” rather than writing
trademark law from scratch. Restatement §9, Comment e ; see
also W. Derenberg, Trade-Mark 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- 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. 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”).

															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.[ 5 ]

															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
content-based 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 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 Government- benefit 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
forum.” 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 content-based
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.

															IV

															Our decision today is narrow. We do not set
forth a comprehensive framework for judging whether all
content-based 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. Notes 1 *Justice Barrett joins Parts I,
II–A, and II–B of this opinion. 2 The 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. 3 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). 4 This 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. 5 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”). 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 viewpoint-neutral,
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). 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 content-based
trademark registration restrictions and free speech. In my view,
such restrictions, whether new or old, are permissible 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 mid-19th 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 founding-era 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.

															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 content-based 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, 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 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, 16Stat. 210–211; ante , at 9. And
today, each of the Lanham Act’s registration criteria refers 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 content-based 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 scrutiny. 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 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 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.

															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, 16Stat. 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 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 & 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 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. 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 late-19th 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 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. Notes 1 There 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. 2 Justice Thomas mistakenly
suggests that I present the federal trademark register as a limited
public forum. Ante, at 21. That is not myposition. 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 . 3 By 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). 4 The Thaddeus Court
referred specifically to the statute’s prohibition on the
registration of marks that “consis[t] merely of individual, firm or
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. 5 The 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. 6 The 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). 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
viewpoint-neutral, 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 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 viewpoint-neutral 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 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-and-tradition 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-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. 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 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, content-based 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 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
dissenting in part). Indeed, this Court has recognized repeatedly
that the First Amendment permits governmental bodies to rely on
reasonable, viewpoint-neutral, content-based 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 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
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 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 (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 free-speech 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 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 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 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 history-and-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. Notes 1 According 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.). 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
limited-public-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. 3 Other 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
false-suggestion 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.

Summary: The Supreme Court upheld the Lanham Act's prohibition on registering trademarks consisting of names identifying living individuals without their consent, rejecting First Amendment free speech challenges. Justice Thomas, delivering the judgment, emphasized the government's role in trademark registration and the source identification purpose of trademarks, distinguishing them from other forms of expression. The Court found the prohibition content-based but constitutional, citing historical precedent and the government's role in trademark creation. Justices Alito and Gorsuch concurred, while Justices Kavanaugh and Barrett concurred in the judgment, offering narrower rationales.