The trademark attorney Thomas D. Foster has found himself in ongoing legal star wars to register US SPACE FORCE as his personal trademark covering coins, jewelry, watches, license plate holders, toys, and other everyday goods. The Patent and Trademark Office rejected his application, a decision which the Trademark Trial and Appeal Board (TTAB) and then the Court of Appeals for the Federal Circuit upheld on appeal. Most recently, hoping to reverse these decisions, Mr. Foster has petitioned the Supreme Court to grant certiorari and review his case.
Mr. Foster filed his application on March 19, 2018, six days after President Trump mentioned, in a public speech to an audience of Marine Corps service members, the idea of a dedicated space military branch called Space Force. Multiple outlets reported it was unclear whether the president was joking when delivering these off-script remarks. The president’s intent later became clear, and on December 20, 2019, he signed a defense bill into law that established the U.S. Space Force as a sixth branch of the U.S. military. In 2020, Netflix premiered a satirical workplace comedy titled Space Force, starring Steve Carell, John Malkovich, and other well-known actors.
Section 2(a) of the Lanham Act bars trademark registrations that falsely suggest a link to government bodies or public figures. To fall within this prohibition, among other prongs, the mark sought to be registered must (1) be the same as, or a close approximation of, the name or identity previously used by another person or institution and (2) point uniquely and unmistakably to that person or institution. Applying these prongs of the test, the Patent and Trademark Office rejected Foster’s US SPACE FORCE trademark application.
On appeal, Foster argued SPACE FORCE was not “previously used by another” as the first prong requires, because he applied to register his mark nearly two years before the U.S. Space Force officially became a branch of the military. Moreover, Foster argued, any passing reference to Space Force by the president or government predating his trademark application was insufficient to establish the first prong. Additionally, because of the popular Netflix show and other non-governmental references to Space Force, his mark could not point “uniquely and unmistakably” to the military branch as the second prong requires. He also challenged Section 2(a) of the Lanham Act as unconstitutional as applied. Foster asserted that it improperly granted the government a monopoly on the short phrase Space Force after being uttered by “an elite or famous or powerful person” and thus improperly benefitted a “special” class. Nonetheless, the TTAB found, and the Federal Circuit upheld, that the trademark falsely suggested a connection with the newly formed military service and denied registration. More details on this Federal Circuit decision were previously reported here.
Earlier this month, Foster petitioned the Supreme Court to reverse the TTAB and Federal Circuit decisions. He asserted his application was “not the product of commercial opportunism or an attempt to misappropriate military prestige” and was instead inspired by President Trump’s “fleeting comment” in the 2018 speech about a new military branch. Foster stated that this comment “rekindled [his] childhood interest in space exploration and science fiction” and that he intended to sell products based upon a fictional entity, not an actual government entity, under the US SPACE FORCE brand.
Foster urged the Supreme Court to grant certiorari because the Federal Circuit’s decision sidestepped his arguments regarding the unconstitutionality of Section 2(a) of the Lanham Act. He asserted that, by considering evidence of political developments occurring after he filed his application, the Federal Circuit undermined his statutory right to a constructive use date based on the filing date. He further argued that the “false suggestion” clause in the Lanham Act was unconstitutionally vague as applied because it considered evolving political narratives from President Trump and other government officials. He reasoned that denying his registration under this clause will “chill innovation and suppress lawful expression” and “embolden viewpoint-based discrimination and post hoc censorship of commercial identity.”
Is Mr. Foster a rebel fighting against the unconstitutional suppression of his registration of US SPACE FORCE? Or is he a bounty hunter looking to profit from a mark first publicly introduced by a government leader? Stay tuned to learn whether and how the Supreme Court will weigh in on Foster v. Stewart.
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