IP Law Daily, TRADEMARK—TTAB: Proposed ‘US SPACE FORCE’ mark falsely suggests connection with U.S. military, (Sep 21, 2022)

By Brian Craig, J.D.

The proposed US SPACE FORCE mark falsely suggests a connection to a branch of the U.S. Armed Forces and a U.S. governmental institution.

Concluding that the proposed US SPACE FORCE mark falsely suggests a connection to the U.S. Space Force, a branch of the U.S. Armed Forces and a U.S. governmental institution, the Trademark Trial and Appeal Board has refused to register the mark. In affirming the examining attorney’s decision, the Board found that the applied-for US SPACE FORCE mark for license plates frames, collectible coins, and other goods will be recognized as pointing uniquely and unmistakably to the U.S. Space Force, a branch of the military. The Board also rejected the applicant’s constitutional argument because the false suggestion clause directly furthers the goal of preventing consumer deception (In re Thomas D. Foster, APC, September 19, 2022, Wellington, T.).

An applicant sought to register the mark US SPACE FORCE in connection with license plates frames, collectible coins, posters, bags, pillows, beverage containers, toys, and a variety of other goods. The examining attorney refused registration based on false suggestion of a connection with the United States Space Force, a branch of the U.S. military. The applicant appealed.

False suggestion. The Board concluded that the proposed US SPACE FORCE mark falsely suggests a connection to the U.S. Space Force, a branch of the U.S. Armed Forces and a U.S. governmental institution. Section 2(a) of the Trademark Act, 15 U.S.C. § 1052(a), prohibits registration of a designation that consists of or comprises matter that may falsely suggest a connection with “persons, living or dead, institutions, beliefs, or national symbols.” The rights protected under the false suggestion provision are not designed primarily to protect the public, but to protect persons and institutions from exploitation of their persona.

In this case, the Board found that US SPACE FORCE and the U.S. Space Force, the branch of the U.S. Armed Forces, have identical names. The military branch of the U.S. Armed Forces is the prior user of the name. Furthermore, the US SPACE FORCE mark will be recognized as pointing uniquely and unmistakably to the U.S. Space Force. The applicant pointed to the popularity of the Netflix “Space Force” show starring actor Steve Carell. But the Board agreed with the examining attorney that the Netflix parody show is an indicator of the U.S. Space Force’s renown and further reinforces a direct association of the term U.S. SPACE FORCE with the actual branch of the military.

The Board also discounted a Google survey submitted by the applicant. Putting aside the survey’s reliability and probative value, the results show that nearly two-third of the responses understood as generally that the term “U.S. Space Force” refers to an agency or instrumentality of the government. In addition, the applicant has no connection with the U.S. Space Force, but a connection would be incorrectly presumed because of the fame and reputation of the U.S. Space Force. Thus, the Board found that the proposed mark falsely suggests a connection to the U.S. Space Force.

Constitutional challenge. The Board also rejected the applicant’s argument that the false suggestion of a connection refusal violates the Free Speech Clause in the First Amendment to the U.S. Constitution. The U.S. Supreme Court has held that the government may ban forms of communication more likely to deceive the public than inform it. The Board previously held that the false suggestion clause directly furthers the goal of prevention of consumer deception in source identifiers. Therefore, the Board affirmed the decision denying registration of the proposed mark.

The Case is Serial No. 87981611.

Attorneys: Thomas D. Foster (TDFoster–Intellectual Property Law) for Thomas D. Foster, APC. Tracy Cross for the USPTO.

Cases: Trademark USPTO