The Federal Circuit Grounds US SPACE FORCE Trademark Application

Written by:Daniel Kiang and Sameer Khan

IN RE THOMAS D. FOSTER, APC,

Before Moore, Prost, and Stoll. Appeal from the United States Patent and Trademark Office.

Summary: Section 2(a) of the Lanham Act bars registration of a pending application for a mark that falsely suggests a connection as of the time of the examination and the false connection inquiry may include evidence arising during the examination process.

In a March 2018 speech, President Trump proposed the formation of a U.S. military branch called "Space Force."  Several days later, Thomas D. Foster, APC filed an intent-to-use trademark application for US SPACE FORCE. Later, President Trump issued a directive to create the U.S. Space Force and, in 2019, Congress passed legislation establishing the military branch. The examining attorney refused registration of US SPACE FORCE under Section 2(a), and the TTAB affirmed, finding a false suggestion of connection with the United States.

On appeal, Foster argued that the Board erred by considering evidence arising after his filing date and that the Board’s findings under the false connection test were unsupported by substantial evidence.  The Federal Circuit rejected the timing argument and explained that, in contrast to a cancellation proceeding where the Board is required to assess the facts as of the time the mark is registered, this case involved a refusal to register.  The appropriate timing could not be the registration date of the mark because the mark was never registered.  Thus, the Federal Circuit held that in refusal-to-register cases, the false connection inquiry can include evidence that arises during the examination process.

The Federal Circuit also found ample evidence (including national media coverage and formal establishment of the Space Force) supporting the Board’s conclusion that Foster’s mark falsely suggested a connection with the United States. Accordingly, the Federal Circuit affirmed the refusal to register the US SPACE FORCE mark.

Editor: Sean Murray