Yesterday's opinion in Iancu v. Brunetti, No. [20]18–302 (U.S. 24 Jun 2019) (PDF, slip op.), on its face concerns the First Amendment and its interface with trademark registration. It's not an unimportant case in that respect; but then, this Court does not take up unimportant First Amendment cases, even if its decision later proves unimportant. There's a hidden landmine in it, though, precisely because neither the parties nor the Court paid sufficient enough attention to the context.
Brunetti holds that the prohibition on registering marks that "[c]onsist[ ] of or comprise[ ] immoral[ ] or scandalous matter," 15 U.S.C. § 1052(a), violates the First Amendment and must be invalidated. Limiting the meaning of "immoral or scandalous" to "offensive or shocking because of their mode of expression" (regardless of the content of that expression) is inappropriate because that's not an "interpretation," but rewriting of the statute inconsistent with its text. Slip op. at 9–11. The only solution — especially in light of the parallel problem in the recent Tam case (barring registration of "The Slants" to refer to an Asian-American band due to the word "disparaging" — that, amusingly, appears between "immoral" and "scandalous" in § 1052(a) — violated the First Amendment) — is to deny enforcement to the "immoral" and "scandalous" bars entirely. In this interpretation, the Court is surely correct.
But…
The real problem is that the Lanham Act in particular, and trademark law in general, fails when applied to expression in general and the arts in particular. That ranges from character names to branding in the useful arts, like fashion. Probably because the parties themselves refused to engage with it, the Court never reached the second-order implications of overt (and especially external) fashion branding. Consider, for a moment, a beer bottle with a picture of a frog giving the finger. (This is not a hypothetical; see Bad Frog Brewery v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998).) Just as the Liquor Board — in an area of much greater regulation than mere "fashion" — could not restrict the use of an undeniably "scandalous" mark on a beer bottle, the neologism "FUCT" must be displayable and registrable. One need not even reach any of the issues in Cohen that distract the opinions other than the majority in Brunetti.
That said, the Cohen problem is relevant — just not in the way that the parties brought to the Court. The fundamental problem is apparent in the context of Cohen. When an individual chooses to wear a jacket stating "Fuck the Draft" into a California courthouse, the identity and message of the speaker are readily ascertainable. There is, perhaps, room for argument at the edges over details, but not much at the core. Transferring this concept to mere branding, however, makes things much different. Imagine, for a moment, that Mr Cohen was wearing a Bad Frog Brewery t-shirt depicting the challenged label; or that he was wearing a "Fuck the Draft" branded polo shirt, with a clearly visible embroidered logo and word mark where the chest pocket would otherwise be. There is, clearly, speech in those instances; its content, and the identity of the speaker, are nowhere near clear. Especially if that's a shirt picked up at a second-hand store because it was cheap and Mr Cohen was poor, and chose to wear something offensive but not full of holes to the courthouse.
In short, the fashion-branding meme — especially brand identification visible on the outside of the clothing, from cartoon frogs and crocodiles on up — is completely FUCT. And the industry's concept of turning its customers into billboards for the brand is equally FUCT. That's one reason that I supported South Butt against North Face; then there's the intellectual dishonesty in relying upon the label to generate distinctiveness (when distinctiveness is merited in the first place) rather than the actual quality and price of the garment. I do not purchase clothing that has external brand identification unless it's easily removable or hideable in normal wear. Well, once upon a time I accepted silver "U.S." logos on my lapels and "U.S. Air Force" over the pocket, but — as Emily Litella would say — that's different; never mind.
Tomorrow, almost for certain, will truly begin another summer of our discontent; the Court releases at least one more opinion at 10am EDT.