It states: No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it... [c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.

An examining attorney at the United States Patent and Trademark Office (USPTO) refused registration under 15 U.S.C.

The Board agreed with the examining attorney that § 1052(c) bars the registration of the mark as it included the name of the President without his written consent.

They stated that the application of the law to Elster's mark unconstitutionally restricted his speech in violation of the First Amendment.

The Court stated the content-based restriction contained within the law would typically trigger either intermediate or strict scrutiny and that, absent an important or compelling state interest in privacy or the public interest, it does not meet the high bar set by these standards of judicial review.