No Space at the Trademark Office for US SPACE FORCE

In a rare precedential decision involving Section 2(a) of the Lanham Act, the U.S. Court of Appeals for the Federal Circuit recently upheld a denial by the Trademark Trial and Appeal Board (TTAB) of applications filed for US SPACE FORCE. In re: Thomas D. Foster, APC, No. 2023-1527 (Fed. Cir. May 7, 2025).

On March 18, 2018, President Trump proposed the formation of the “U.S. Space Force” as a new branch of the U.S. military. The very next day, Thomas D. Foster filed two trademark applications claiming an intent to use US SPACE FORCE for a long list of goods and services in 12 classes.

Under Section 2(a), a proposed mark that falsely suggests a connection with an institution or person (which, by statutory definition, includes the U.S. government) is unregistrable if:

1. The mark is the same as, or a close approximation of, the name or identity previously used by another person or institution;
2. The mark would be recognized as such, in that it points uniquely and unmistakably to that person or institution;
3. The person or institution named by the mark is not connected with the activities performed by the applicant under the mark; and
4. The fame or reputation of the person or institution is such that, when the mark is used with the applicant’s goods or services, a connection with the person or institution would be presumed.

On appeal of the denial of the applications, a key issue was what evidence to consider when determining whether the mark would be recognized as pointing uniquely and unmistakably to the U.S. government. Foster argued that the TTAB erred by relying on evidence that did not exist until after the March 19 filing date of the applications. To help guide its decision, the court looked to when evidence must have existed in prior decisions based on other grounds under Section 2 of the Lanham Act, noting that:

1. In an opposition based on a likelihood of confusion under Section 2(d), evidence can be considered if it existed as of the latest date for taking testimony and presenting evidence.
2. In an appeal of a refusal to register based on descriptiveness under Section 2(e), evidence can be considered if it existed as of the date the application was acted on by the Trademark Office.
3. In an appeal of a refusal to register based on acquired distinctiveness under Section 2(f), evidence can be considered if it existed as of the date of the TTAB’s decision.

Considering these prior decisions, the Court held that “for consistency” in Section 2(a) cases, evidence may be considered if it existed as of the time of examination.

The court then agreed there was substantial evidence to support the TTAB’s ruling that Foster’s US SPACE FORCE mark pointed uniquely and unmistakably to the United States, relying on President Trump’s March 18, 2018, announcement and subsequent significant news coverage of the proposed U.S. Space Force and its ultimate creation by an act of Congress in 2019. The court cautioned in a footnote that not every use of “United States” or “U.S.” within a mark would falsely suggest a connection with the United States, and that resolving such cases involves a “highly factual inquiry which takes into account a number of factors.”

Takeaways

There are literally hundreds of live trademark registrations for marks that include the term “U.S.,” and the term by itself does not always indicate a connection with the U.S. government. However, an attempt to register a mark that is the name of an existing (or prospective) U.S. government branch or agency is likely to be met with a stern eye. Moreover, it is now clear that in Section 2(a) cases, whether a proposed mark points “uniquely and unmistakably” to another person or institution does not require the mark to have pointed to that person or institution as of the filing date, but, rather, subsequent evidence may be relied upon up to the time of examination of the application.