Syllabus
VIDAL, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, UNITED STATES PATENT AND TRADEMARK certiorari to the united states court of appeals for the federal circuit No. 22–704. Argued November 1, 2023—Decided June 13, 2024 Drawing on a 2016 Presidential primary debate exchange between then- candidate Donald Trump and Senator Marco Rubio, respondent Steve Elster sought to federally register the trademark “Trump too small” to use on shirts and hats. An examiner from the Patent and Trademark Offce refused registration based on the “names clause,” a Lanham Act 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,” 15 U. S. C. § 1052(c). The Trademark Trial and Appeal Board affrmed, rejecting Elster's argument that the names clause violates his First Amendment right to free speech. The Federal Circuit reversed.
Held: The Lanham Act's names clause does not violate the First Amendment. Pp. 292–311.
(a) When enforcing the First Amendment's prohibition against abridging freedom of speech, this Court “distinguish[es] between content- based and content-neutral regulations of speech.” National Institute of Family and Life Advocates v. Becerra, 585 U. S. 755, 766. A content- based regulation “target[s] speech based on its communicative content,” Reed v. Town of Gilbert, 576 U. S. 155, 163, and is “ `presumptively unconstitutional,' ” National Institute of Family and Life Advocates, 585 U. S., at 766. Viewpoint discrimination is a particularly “egregious form of content discrimination” that targets not merely a subject matter “but particular views taken by speakers on a subject.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829. This Court has twice concluded that trademark restrictions that discriminate based on viewpoint violate the First Amendment. See Matal v. Tam, 582 U. S. 218; Iancu v. Brunetti, 588 U. S. 388.
Because the names clause does not single out a trademark “based on the specifc motivating ideology or the opinion or perspective of the speaker,” Reed, 576 U. S., at 168, it does not facially discriminate against any viewpoint. But a law that does not facially discriminate based on Page Proof Pending Publication Page Proof Pending Publication viewpoint may still be found to discriminate based on viewpoint in its practical operation. See Sorrell v. IMS Health Inc., 564 U. S. 552, 565. Elster suggests that is the case here because obtaining consent for a trademark under the names clause is easier if it fatters rather than mocks a subject. But there are many reasons why a person may wish to withhold consent to register a trademark bearing his name. Although the names clause is not viewpoint based, it is content based because it “applies to particular speech because of the topic discussed or the idea or message expressed,” Reed, 576 U. S., at 163—i. e., it turns on whether the proposed trademark contains a person's name. Thus, the Court confronts a situation not addressed in Tam and Brunetti. Pp. 292–295.
(b) Although a content-based regulation of speech is presumptively unconstitutional, this Court has not decided whether heightened scrutiny extends to a content-based—but viewpoint-neutral—trademark restriction. Several features of trademark counsel against a per se rule of applying heightened scrutiny in such cases. Most importantly, trademark rights have always coexisted with the First Amendment, and the inherently content-based nature of trademark law has never been a cause for constitutional concern.
This country has recognized trademark rights since the founding. Much of early American trademark law came by way of English law, where the protection of trademarks was an inherently content-based endeavor. For most of the 18th and 19th centuries, trademark law fell largely within the “province of the States,” Tam, 582 U. S., at 224, and went largely unrecorded. The frst reported decisions in state and federal courts revolved around a trademark's content. See Thomson v. Winchester, 36 Mass. 214, 216; Taylor v. Carpenter, 23 F. Cas. 742 (No. 13,784). And as recorded trademark law began to take off in the last decades of the 19th century, its established content-based nature continued. In 1870, Congress enacted the frst federal trademark law, containing prohibitions on what could be protected as a trademark. It restricted a trademark based upon its content. And as trademark disputes increased, courts continued to assess trademarks based on their content. The content-based nature of trademark law 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. This history demonstrates that restrictions on trademarks have always turned on a mark's content and have existed harmoniously alongside the First Amendment from the beginning. That relationship suggests that heightened scrutiny need not always apply in this unique context.
Page Proof Pending Publication The content-based nature of trademark protection is compelled by the historical rationales of trademark law—to prohibit confusion by identifying the ownership and source of goods. Indicating ownership and the manufacturing source touch on the content of the mark, i. e., from whom the product came. And policing trademarks so as to prevent confusion over the source of goods requires looking to the mark's content. Because of the uniquely content-based nature of trademark regulation and the longstanding coexistence of trademark regulation with the First Amendment, a solely content-based restriction of trademark registration need not be evaluated under heightened scrutiny. R. A. V. v. St. Paul, 505 U. S. 377, 387. Pp. 295–300.
(c) The history and tradition of restricting trademarks containing names is suffcient to conclude that the names clause is compatible with the First Amendment. Pp. 300–308.
(1) Restrictions on trademarking names 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. See Brown Chemical Co. v. Meyer, 139 U. S. 540, 544. The common law prevented a person from trademarking any name—even his own—by itself. It did, however, allow a person to obtain a trademark containing his own name, provided that he could not use the mark containing his name to the exclusion of a person with the same name. The common-law approach thus protected only a person's right to use his own name, an understanding that was carried over into federal statutory law and included in the names clause. The Court fnds no evidence that the common law afforded protection to a person seeking a trademark of another living person's name. This common-law understanding is refected in federal statutory law, and its requirement that a trademark contain more than merely a name remains largely intact. See § 1052(e)(4). It is thus unsurprising that the Lanham Act included the names clause.
The restriction on trademarking names also refects trademark law's historical rationale of identifying the source of goods and thus ensuring that consumers know the source of a product and can evaluate it based upon the manufacturer's reputation and goodwill. Moreover, the clause respects the established connection between a trademark and its protection of the markholder's reputation. This Court has long recognized that a trademark protects the markholder's reputation, and the connection is even stronger when the mark contains a person's name. Applying these principles, the Court has also recognized that a party has no First Amendment right to piggyback off the goodwill another entity has built in its name. See San Francisco Arts & Athletics, Inc. Page Proof Pending Publication v. United States Olympic Comm., 483 U. S. 522, 528. By protecting a person's use of his name, the names clause “secur[es] to the producer the benefts of [his] good reputation.” Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189, 198. Pp. 301–307.
(2) A tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fts within that tradition. The names clause refects the 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. A frm grounding in traditional trademark law is suffcient to justify the content-based trademark restriction here, but a case presenting a content-based trademark restriction without a historical analogue may require a different approach. In this case, the Court sees no reason to disturb this longstanding tradition, which supports the restriction of the use of another's name in a trademark. Pp. 307–308. (d) This decision is narrow. It does not set forth a comprehensive framework for judging whether all content-based but viewpoint-neutral trademark restrictions are constitutional. Nor does it suggest that an equivalent history and tradition is required to uphold every content- based trademark restriction. The Court holds only that history and tradition establish that the particular restriction here, the names clause in § 1052(c), does not violate the First Amendment. P. 310. 26 F. 4th 1328, reversed.
Thomas, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. Alito and Gorsuch, JJ., joined that opinion in full; Roberts, C. J., and Kavanaugh, J., joined all but Part III; and Barrett, J., joined Parts I, II–A, and II–B. Kavanaugh, J., fled an opinion concurring in part, in which Roberts, C. J., joined, post, p. 311. Barrett, J., fled an opinion concurring in part, in which Kagan, J., joined, in which Sotomayor, J., joined as to Parts I, II, and III–B, and in which Jackson, J., joined as to Parts I and II, post, p. 311. Sotomayor, J., fled an opinion concurring in the judgment, in which Kagan and Jackson, JJ., joined, post, p. 325.
Deputy Solicitor General Stewart argued the cause for petitioner. With him on the briefs were Solicitor General Prelogar, Principal Deputy Assistant Attorney General Boynton, Frederick Liu, Daniel Tenny, Joshua M. Salzman, Thomas W. Krause, Christina J. Hieber, and Mary Beth Walker.
Jonathan E. Taylor argued the cause for respondent.
With him on the brief were Deepak Gupta and Gregory A.
Beck.* 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.† Steve Elster sought to register the trademark “Trump too small.” But, the Patent and Trademark Offce (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.” 60 Stat. 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 *Briefs of amici curiae urging reversal were fled for the International Trademark Association by Jonathan E. Moskin and Jennifer L. Gregor; for Public Citizen by Paul Alan Levy and Scott L. Nelson; and for Matthew A. Handal by Brian A. Ross and Polina L. Ross.
Briefs of amici curiae urging affrmance were fled for the American Intellectual Property Law Association by James D. Crowne; for the Foundation for Individual Rights and Expression et al. by Christopher G. Mi chel, Todd Anten, Jessica A. Rose, J. T. Morris, and Ilya Shapiro; and for Samuel F. Ernst, pro se.
Susan J. Kohlmann and Adam G. Unikowsky fled a brief for the Motion Picture Association, Inc., as amicus curiae.
†Justice Barrett joins Parts I, II–A, and II–B of this opinion. Page Proof Pending Publication goods from those of others.” B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U. S. 138, 142 (2015). So “[o]ne who frst 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 benefts.” 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. 311 (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.
Page Proof Pending Publication 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 affrmed, and it also rejected Elster's argument that the names clause violates his First Amendment right to free speech.1 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 frst 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 “tar1The 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. Page Proof Pending Publication get[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 justifed 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 Page Proof Pending Publication 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 fattering, critical or neutral.” 2 McCarthy § 13:37.50. The Government is thus not singling out a trademark “based on the specifc 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 fatters 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.2 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 2It 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, Offce Action of Dec. 8, 2020, Serial No. 90226753; PTO, Offce Action of Oct. 15, 2015, Serial No. 86728410; In re Hoeffin, 97 USPQ 2d 1174, 1177–1178 (TTAB 2010).
Page Proof Pending Publication 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 frst 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 tradePage Proof Pending Publication Page Proof Pending Publication marks.” Post, at 330 (Sotomayor, J., concurring in judgment); accord, post, at 312–317 (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 fx 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) (defning “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 affx a label to its goods “with the seal of the said Corporation.” 1 Mass. Private and Special Laws, 1789, § 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 frst 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 “frst 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 frst reported trademark case in federal court revolved around a trademark's content. Justice Story, sitting as Circuit Justice, granted an injunction to proPage Proof Pending Publication hibit a seller of spools from infringing on the plaintiff's trademark of “Taylor's Persian Thread.” Taylor v. Carpenter, 23 F. Cas. 742 (No. 13,784) (CC Mass. 1844). Justice Story explained that, by using the trademark, the seller “imitated . . . both descriptions of spools and labels, red and black, of the plaintiff 's,” 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 744.
Recorded trademark law began to take off in the last decades of the 19th century—after the ratifcation 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 frst 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, 16 Stat. 210–212).3 This frst 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 suffcient 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 frst trademark decision explained that a trademark cannot consist of a purely geographical name, rejecting an 3This frst 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.
Page Proof Pending Publication 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 defnes 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 defnes 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, refected 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] affxed” and “indicatPage Proof Pending Publication ing the source or origin of manufacture.” Schechter 122. Indicating ownership of a good was needed in part to “f[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 refect 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 299.
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 330 (opinion of Sotomayor, J.); post, at 316–317 (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 omitPage Proof Pending Publication ted). 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 suffcient 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.
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 Page Proof Pending Publication 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 Tread- way 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 Page Proof Pending Publication Page Proof Pending Publication 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 (1875); see also Treadway 143; accord, post, at 319–320 (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 per- son'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 own 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 diffcult, 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 frst federal trademark law contained a requirement that a trademark contain more than merely a name. See Act of July 8, 1870, § 79, 16 Stat. 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, 36 Stat. 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 Trading 22 (1936) (explaining that the “function [of federal trademark law] is essentially an evidential one, refecting 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 refects Page Proof Pending Publication the common law's careful treatment of names when it comes to trademarks.
The restriction on trademarking names also refects 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 trademark is to identify the origin or ownership of the article to which it is affxed”); accord, post, at 318 (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 refects 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 markholder'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 profts as result from his reputation for skill, industry, and fdelity”); 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 refects 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 Olym pic Comm., 483 U. S. 522, 532 (1987) (internal quotation Page Proof Pending Publication Page Proof Pending Publication 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 (N.Y. 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. Water man 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 319 (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 benefts 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 per- son's “commercial identity, thereby [allowing him] to enjoy the fruits of his own labor”).
We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fts 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 refects 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.4 4Justice Barrett takes a different approach, suggesting that a historical rule that mirrors the names clause is required. See post, at 321. But, history-focused approaches to constitutional scrutiny do not typically rePage Proof Pending Publication None of this is to say that the Government cannot innovate when it comes to trademark law. A frm grounding in traditional trademark law is suffcient to justify the content-based trademark restriction before us, but we do not opine on what may be required or suffcient 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 324. But, we need not develop such a comprehensive theory to address the relatively simple case before us today. See post, at 311 (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. quire a historical twin. Cf. New York State Rife & 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 (N.Y. 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”). Page Proof Pending Publication Post, at 329 (opinion of Sotomayor, J.); see post, at 318–319 (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 beneft. Post, at 331. 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 post, at 331–332. 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-beneft cases are an ill ft for the names clause, and we would not graft this precedent, which Justice Sotomayor acknowledges is not controlling, onto this trademark dispute. Post, at 332. 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 317. 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 Page Proof Pending Publication 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 suffcient 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, Page Proof Pending Publication at 311 (opinion of Kavanaugh, J.). The judgment of the Court of Appeals is Reversed.