Authored by: Jeremy J. Gustrowsky
In a recent decision, the Federal Circuit affirmed the refusal to register the trademark “US SPACE FORCE” for private use, finding that it would falsely suggest a connection with the United States government. The case arose after Thomas D. Foster, APC, filed a trademark application for “US SPACE FORCE” just days after President Trump publicly announced plans to create a new military branch by that name. The United States Patent and Trademark Office (USPTO) refused the application, and the Trademark Trial and Appeal Board (TTAB) upheld that refusal, citing Section 2(a) of the Lanham Act, which bars registration of marks that falsely suggest a connection with persons, institutions, or national symbols.
A key issue in the appeal was whether the Board could consider evidence that came into existence after the trademark application was filed. The Federal Circuit clarified that, for refusals to register, the Board may consider facts and evidence up until the date of its final decision—not just those available at the time of filing. This means that developments occurring during the examination process, such as the official establishment of the U.S. Space Force by Congress in December 2019, could be taken into account.
The court also agreed with the Board’s finding that “US SPACE FORCE” is either the same as or a very close approximation of a name already used by the United States, and that the mark would be recognized as pointing uniquely and unmistakably to the U.S. government, particularly its military. The evidence included public statements by President Trump, widespread media coverage, and the eventual creation of the U.S. Space Force as a military branch.
Ultimately, the Federal Circuit concluded that the Board’s decision was supported by substantial evidence and that the refusal to register the mark was appropriate under the law. This case highlights the importance of considering both the timing of evidence and the potential for a trademark to suggest a false connection with government entities.