`
`
`
`This Opinion is Not a
`Precedent of the TTAB
`
`Mailed: September 19, 2022
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____
`
`Trademark Trial and Appeal Board
`_____
`
`In re Thomas D. Foster, APC
`
`Serial No. 87981611
`_____
`
`Thomas D. Foster of TDFoster – Intellectual Property Law,
`for Thomas D. Foster, APC.
`
`Tracy Cross, Trademark Examining Attorney, Law Office 109,
`Michael Kazazian, Managing Attorney.
`_____
`
`
`Before Wellington, Heasley and Allard,
`Administrative Trademark Judges.
`
`
`Opinion by Wellington, Administrative Trademark Judge:
`
`Thomas D. Foster, APC (“Applicant”), a corporation, seeks registration on the
`
`Principal Register of the standard character mark US SPACE FORCE for the
`
`following goods and services:1
`
`“Metal license plates; metal novelty license plates; souvenir license plates
`of metal” in International Class 6;
`
`“License plate frames; license plate holders” in International Class 12;
`
`
`1 Application Serial No. 87981611, filed March 19, 2018 under Section 1(b) of the Trademark
`Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of an intent to use the mark in
`commerce. The identifications of goods for Classes 16, 18, 21, 24 and 28, are extensive and
`we therefore summarize these goods.
`
`

`

`Serial No. 87981611
`
`“Collectible coins; commemorative coins; lapel pins; ornamental lapel pins;
`jewelry pins for use on hats; jewelry; watches; clocks; decorative key fobs
`of common metal; leather key chains” in International Class 14;
`
`Various types of books, posters, art prints, magazines, and other stationery
`items in International Class 16;
`
`Various types of bags, umbrellas, and luggage in International Class 18;
`
`“Accent pillows; bed pillows; floor pillows; novelty pillows; pillows; picture
`and photograph frames; picture frames; wind chimes” in International
`Class 20;
`
`Various goods, including beverage and food containers and related
`accessory goods, in International Class 21;
`
`Various articles, including cloth flags, linen, towels, and blankets, in
`International Class 24;
`
`Various types of toys, including “toy spacecraft; toy rockets; toy space
`vehicles; toy figures; toy vehicles; toy weapons; scale model spacecraft;
`scale model rockets; scale model space vehicles,” in International Class 28;
`
`and
`
`“Lighters for smokers; cigar lighters” in International Class 34.
`
`The Examining Attorney has refused registration of the mark for all classes of
`
`goods under Section 2(a) of the Trademark Act (“the Act”), 15 U.S.C. § 1052(a), based
`
`on false suggestion of a connection with the United States Space Force.
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`Serial No. 87981611
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`When the refusal was made final, Applicant appealed.2 The appeal has been
`
`briefed.3
`
`We affirm the refusal to register.
`
`I. Section 2(a) False Suggestion of a Connection
`
`Section 2(a) of the Act prohibits registration on either the Principal or the
`
`Supplemental Register 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 ....” 15 U.S.C. § 1052(a). “[T]he rights protected under the § 2(a)
`
`false suggestion provision are not designed primarily to protect the public, but to
`
`protect persons and
`
`institutions
`
`from exploitation of
`
`their persona.”
`
`Bridgestone/Firestone Rsch. Inc. v. Auto. Club de l’Ouest de la France, 245 F.3d 1359,
`
`58 USPQ2d 1460, 1463 (Fed. Cir. 2001) (citing Univ. of Notre Dame du Lac v. J.C.
`
`Gourmet Food Imps. Co., 703 F.2d 1372, 217 USPQ 505, 508-09 (Fed. Cir. 1983)). A
`
`person, institution, belief or national symbol does not need to be explicitly protected
`
`by statute in order to be protected under Section 2(a). See, e.g., In re Shinnecock
`
`Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218 (Fed. Cir. 2009).
`
`
`2 Prior to the appeal, Applicant filed a request for reconsideration (on January 24, 2020), and
`this was denied by the Examining Attorney on March 2, 2020.
`
`The application was then remanded to the Examining Attorney at Applicant’s request (4-5
`TTABVUE) based on “new and compelling evidence.” The application was also remanded to
`the Examining Attorney at the Examining Attorney’s request (6-7 TTABVUE) for remand “to
`address an issue not involved in the appeal that may render the subject mark unregistrable.”
`After the issuance of another final Office Action (on July 6, 2021), Applicant filed a second
`request for reconsideration (on September 11, 2021), and this was denied by the Examining
`Attorney (on January 28, 2022). The appeal was then resumed (11 TTABVUE).
`
`3 12 TTABVUE (Applicant’s appeal brief) and 14 TTABVUE (Examining Attorney’s appeal
`brief).
`
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`

`

`Serial No. 87981611
`
`Also, relevant to this proceeding, the U.S. government, as well as government
`
`agencies and instrumentalities, are considered juristic persons or institutions within
`
`the meaning of the statute. 15 U.S.C. § 1052(a); Section 45 of the Act, 15 U.S.C.
`
`§ 1127. See In re Peter S. Herrick P.A., 91 USPQ2d 1505, 1506 (TTAB 2009)
`
`(“institutions, as used in Section 2(a), include government agencies.”); U.S. Navy v.
`
`United States Mfg. Co., 2 USPQ2d 1254, 1257-58 (TTAB 1987) (“the Navy is a juristic
`
`person within the meaning of Section 45 of the Act and the Marine Corps might be
`
`argued to be an institution”); In re Cotter & Co., 228 USPQ 202, 204-05 (TTAB 1985)
`
`(finding the United States Military Academy is an institution and West Point “has
`
`come to be solely associated with and points uniquely to the United States Military
`
`Academy”); NASA v. Record Chem. Co. Inc., 185 USPQ 563, 565-66 (TTAB 1975)
`
`(finding the National Aeronautics and Space Administration (NASA) is a juristic
`
`person and institution). Thus, common names, acronyms and initialisms for the U.S.
`
`government or its agencies or instrumentalities can be relevant to false suggestion of
`
`connection claims.
`
`To establish that a proposed mark falsely suggests a connection with a person or
`
`an institution, it must be shown that:
`
`(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
`
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`

`Serial No. 87981611
`
`(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.
`
`Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 217 USPQ 508-09
`
`(“the Univ. of Notre-Dame du Lac test”). See also In re Pedersen, 109 USPQ2d 1185,
`
`1188-89 (TTAB 2013) (citing Univ. of Notre Dame du Lac v. J.C. Gourmet Food
`
`Imports Co. in an ex parte appeal context for “providing foundational principles for
`
`the current four-part test used by the Board to determine the existence of a false
`
`connection”). See also Piano Factory Grp., v. Schiedmayer Celesta GmbH, 11 F.4th
`
`1363, 2021 USPQ2d 913, at *11 (Fed. Cir. 2021); U.S. Olympic Comm. v. Tempting
`
`Brands Netherlands B.V., 2021 USPQ2d 164, at *17-18 (TTAB 2021); In re Jackson
`
`Int’l Trading Co., 103 USPQ2d 1417, 1419 (TTAB 2012); Buffett v. Chi-Chi’s, Inc., 226
`
`USPQ 428, 429 (TTAB 1985).
`
`A. US SPACE FORCE is the same as, or a close approximation of,
`U.S. Space Force
`
`The Examining Attorney asserts that “[t]he evidence of record makes clear that
`
`the U.S. Space Force is an agency of the U.S. Government” and “[i]n fact, the U.S.
`
`Space Force is the sixth branch of the U.S. military, nested within the Department of
`
`the Air Force.”4 In support, she submitted numerous materials, including printouts
`
`from the official U.S. military website for the “United States Space Force”
`
`
`4 14 TTABVUE 9.
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`

`

`Serial No. 87981611
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`(www.spaceforce.mil), describing it as a “new military branch” and “independent …
`
`within the Department of the Air Force.”5
`
`Applicant does not argue that its proposed mark is not the same as the U.S. Space
`
`Force branch of the U.S. Armed Forces. Indeed, they are identical.
`
`However, Applicant takes issue with the timing of the creation of the military
`
`branch vis-à-vis the filing date of its application. Specifically, Applicant contends
`
`that:6
`
`The legislative provisions of the 2020 National Defense Authorization Act
`for the creation of the Space Force, were only signed into law by President
`Donald Trump during a signing ceremony at Joint Base Andrews on
`December 20, 2019. The present application was filed on March 19, 2018 -
`almost two years two years prior to the creation of this new military
`branch.
`
`In other words, Applicant is relying on the part of “previously used” wording in
`
`the first element of the Univ. of Notre-Dame du Lac test requiring “by implication
`
`that the person or institution with which a connection is falsely suggested must be
`
`the prior user.” In re Nuclear Research Corp., 16 USPQ2d 1316, 1317 (TTAB 1990)
`
`(false suggestion of a connection U.S. Nuclear Regulatory Commission refusal was
`
`“ill founded” and reversed by Board because applicant was first user of initialism
`
`NRC). See also TRADEMARK MANUAL OF EXAMINING PROCEDURE
`
`(TMEP)
`
`§ 1203.03(b)(i) (July 2022); J. Thomas McCarthy, 3 MCCARTHY ON TRADEMARKS AND
`
`UNFAIR COMPETITION, § 19:76 (5TH ed. 2021) (“The phrase ‘falsely suggest a connection
`
`
`5 July 6, 2021 Office Action, at TSDR p. 5.
`
`6 12 TTABVUE 11.
`
`- 6 -
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`

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`Serial No. 87981611
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`with’ in § 2(a) necessarily requires by implication that the person or institution with
`
`whom a connection is suggested must be the prior user.”).
`
`However, prior use in the context of a false suggestion of a connection is not a
`
`question of priority as contemplated in a likelihood of confusion context. Indeed, prior
`
`use “may be found when one’s right to control the use of its identity is violated, even
`
`if the name claimed to be appropriated was never commercially exploited as a
`
`trademark or in a manner analogous to trademark use.” In re Pedersen, 109 USPQ2d
`
`at 1193; see also In re Nieves & Nieves LLC, 113 USPQ2d 1639, 1644 (TTAB 2015)
`
`(ROYAL KATE creates a commercial impression that refers to Kate Middleton even
`
`though she has never used the identifier).
`
`In terms of being previously-used, we note that while there were earlier proposed
`
`iterations of U.S. military institutions, including “U.S. Space Corps” in 2017 and “Air
`
`Force Space Command,” it was on June 18, 2018 when the then U.S. President,
`
`Donald Trump, announced a “directive to create a sixth branch of the United States
`
`Armed Forces.”7 According to official U.S. Space Force website, the U.S. Space Force
`
`is “the newest branch of the [U.S.] Armed Forces” and “was established December 20,
`
`2019 with the enactment of the Fiscal Year 2020 National Defense Authorization
`
`Act.”8
`
`The involved application is based on Applicant’s allegation that it intends to use
`
`the mark in commerce (see Note 1). Applicant does not argue that it is the prior user
`
`
`7 July 9, 2018 Office Action, at TSDR pp. 12-13 (from Wikipedia online encyclopedia).
`
`8 July 6, 2021 Office Action, at TSDR p. 21.
`
`- 7 -
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`Serial No. 87981611
`
`of its proposed mark, but that it “intends to offer goods and services under its
`
`[proposed mark].”9
`
`Thus, for purposes of the false suggestion refusal, Applicant cannot argue that it
`
`is the prior user, and whether or not the U.S. Space Force was officially created or in
`
`existence at the time of Applicant’s filing date, the fact remains now that the military
`
`branch of the U.S. Armed Forces is the prior user. Cf. In re Nuclear Research Corp.,
`
`16 USPQ2d 1317 (applicant was owner of use-based registration and Board found it
`
`to be “the long prior user of NRC”). Accordingly, Applicant’s intended mark is the
`
`same as the name as that already being used by the U.S. Space Force, a branch of the
`
`U.S. Armed Forces.
`
`B. US SPACE FORCE will be recognized as pointing uniquely and
`unmistakably to the U.S. Space Force
`
`The record reveals that the U.S. Space Force has received considerable attention
`
`since it was first announced in 2018. It has been prominently featured in major news
`
`publications, like Newsweek, identifying it as the military branch charged with the
`
`mission of “protecting American interests in space.”10 A Time magazine article,
`
`“America Really Does Have a Space Force. We Went Inside to See What It Does,”
`
`describes the U.S. Space Force’s role and actions and that it has a budget of $15.4
`
`billion for 2021.11
`
`
`9 12 TTABVUE 8.
`
`10 October 13, 2020 Office Action, at TSDR p. 21 (from www.newsweek.com, “How to Join
`U.S. Space Force, America’s Newest Branch of the Military,” May 15, 2020).
`
`11 Id. at p. 27 (from www.time.com, July 23, 2020).
`
`- 8 -
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`

`Serial No. 87981611
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`On January 14, 2020, the then Vice President Mike Pence swore in General John
`
`W. Raymond as the “highest-ranking military leader of the newly created U.S. Space
`
`Force, adding a prominent White House ceremony that recognized the arrival of the
`
`nation’s newest, separate branch of the military.”12 The U.S. Space Force’s
`
`headquarters is located in the Pentagon, along with those of the Army, Navy, Marine
`
`Corps and Air Force.13
`
`In its brief, Applicant sets forth various reasons it believes the proposed mark
`
`“does not point uniquely and unmistakably to the U.S. Government, former President
`
`Trump, or the U.S. Space Force.”14 We address these arguments.
`
`1. Netflix Series “Space Force”
`
`On May 29, 2020, a Netflix-original series called “Space Force” premiered that,
`
`according to reviews, was inspired by and intended to be a parody of the actual U.S.
`
`Space Force.15 As pointed out by Esquire magazine — under the subtitle “Is Space
`
`Force Inspired By the Actual Space Force?” — the “show’s drop onto Netflix … is
`
`eerily timed with the developments in the actual United States Space Force, a $40
`
`million project that stands as the country’s first new military branch since the
`
`
`12 July 6, 2021 Office Action, at TSDR p. 20.
`
`13 Id. at 22.
`
`14 12 TTABVUE 5.
`
`15 See, e.g., October 13, 2020 Office Action, at TSDR p. 107 (www.cnn.com, “‘Space Force’
`casts Steve Carell in a broad satire that never achieves liftoff,” May 29, 2020, stating that
`the show is “clearly designed to spoof President Trump’s pet military project”) and p. 110
`(www.theatlantic.com, “Space Force Tells a Terrible Joke About America,” stating that “the
`show was supposedly dreamed up years ago when [then] President Trump announced the
`founding of the sixth, extraterrestrial branch of the armed forces…”).
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`

`Serial No. 87981611
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`creation of the Air Force in 1947.”16 The show’s plot revolves around a “four-star
`
`general reluctantly plucked from his position at the Air Force and placed atop this
`
`new sixth branch of the military.”17 A screenshot, displayed in The Atlantic magazine,
`
`shows actor Steve Carell playing the general:18
`
`.19
`
`Applicant acknowledges that the Netflix “Space Force” series received “high
`
`ratings from audiences” and has been viewed by many, but contends that it also
`
`provides a reason Applicant’s proposed mark “cannot be said to point uniquely and
`
`unmistakably” to the U.S. Space Force.20 Specifically, Applicant argues that “[o]ne
`
`might presume that the “U.S. Government, former President Trump, or the U.S.
`
`
`16 Id. at p. 97.
`
`17 Id. at p. 107.
`
`18 Id. at p. 110.
`
`19 Id.
`
`20 12 TTABVUE 16.
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`- 10 -
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`Serial No. 87981611
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`Space Force might object to the use of these terms [in the Netflix show], but that is
`
`obviously not the case.”21
`
`Contrary to Applicant’s argument, we agree with the Examining Attorney that
`
`the existence and apparent success of the Netflix show, and particularly that the U.S.
`
`Space Force is the target of the parody, helps show the extent of fame of the military
`
`branch of the U.S. Armed Forces. As the Examining Attorney explains, “[m]ultiple
`
`seasons of a parody show … regarding the actual U.S. SPACE FORCE … can only
`
`add to the governmental entity’s cultural relevance, fame and notoriety in the public
`
`eye.”22 We further agree with the Examining Attorney that “[a]rguably, a satire’s
`
`potential success is directly proportional to the fame of the target of the parody.”23 It
`
`has long been stated that parodies are usually best made of an entity that is famous
`
`or, at least, well-known to the public. See, e.g., In re Serial Podcast, LLC, 126 USPQ2d
`
`1061, 1076 (TTAB 2018) (a matter has to be famous or well-known to be the subject
`
`of parody). See also, e.g. Louis Vuitton Malletier S.A. v. Haute Diggity Dog LLC, 507
`
`F.3d 252 , 84 USPQ2d 1969, 1975 (4th Cir. 2007) (“It is a matter of common sense
`
`that the strength of a famous mark allows consumers immediately to perceive the
`
`target of the parody, while simultaneously allowing them to recognize the changes to
`
`the mark that make the parody funny or biting.”); D.S. Welkowitz “Trademark
`
`
`21 Id. at 17.
`
`22 14 TTABVUE 17.
`
`23 Id.
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`Serial No. 87981611
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`Parody after Hustler Magazine v. Falwell,” 11 Comm. & L. 65, 72 (Dec. 1989) (“Hence,
`
`a parody, to be effective, virtually requires that it parody a well-known trademark.”).
`
`In sum, the Netflix 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.
`
`2. 1987 Animated Television Show “Starcom: the U.S. Space Force” and
`Associated Collectable Toys
`
`Applicant asserts that U.S. Space Force is “recognized as a type of collectable
`
`space related toys associated” with an animated television show called “Starcom: the
`
`U.S. Space Force” that aired in 1987.24 Applicant contends that the “public’s
`
`continuing familiarity with this show and the associated collectable toys is reflected
`
`in the fact that fans still write articles about them.”25 In support, Applicant relies on
`
`printouts from online sources, including a Wikipedia entry for the television show,
`
`the website “Robot’s Pajamas,” and a 2014 online review entitled “starcom: the u.s.
`
`space force – remember this?”26 Applicant also submitted printouts showing “Starcom
`
`U.S. Space Force” toys offered for sale on Ebay.27 In addition, Applicant submitted
`
`the declaration of Frank Winspur, a hobbyist distributor “with a focus on science
`
`fiction, fantasy, and comic related model kits, collectables and toys” and self-
`
`proclaimed “expert in the vintage and collectable toy field.”28 Mr. Winspur avers, inter
`
`
`24 Id. at 15.
`
`25 Id.
`
`26 Attached to Applicant’s response filed January 24, 2020.
`
`27 Id.
`
`28 4 TTABVUE 47.
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`Serial No. 87981611
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`alia, that “U.S. Space Force toys are available for purchase online” and that “there is
`
`a sizable number of other space toy collectors that know of and that collect these U.S.
`
`Space Force toys.”29
`
`According to Wikipedia, however, the television show was not very successful and
`
`“did not get much of a chance to reach the intended audience before it was cancelled
`
`after one brief season.” Furthermore, the associated “toy line … was unsuccessful in
`
`the North American domestic market.”30
`
`On this record, it is unlikely that a significant portion of the public will make an
`
`association with the short-lived animated television show or collectable toys. Rather,
`
`we agree with the Examining Attorney that “[a]ny familiarity with a television show,
`
`that a particular segment of the population remembers, would be overshadowed by
`
`the prominence of the U.S. Government military branch.”31
`
`3. Applicant’s “Google Survey”
`
`Applicant also submitted a “Google survey” and argues that the “results of this
`
`survey show that the term U.S. SPACE FORCE certainly does not point uniquely and
`
`unmistakably to a branch of the U.S. military.”32 The survey consists of 3 pages,
`
`printouts from the Google website purportedly showing a “start date” of March 22,
`
`2021, with 1,499 “responses.”33 According to the printouts, 997 survey respondents
`
`
`29 Id.
`
`30 Applicant’s response filed January 24, 2020, TSDR p. 17.
`
`31 14 TTABVUE 15.
`
`32 12 TTABVUE 17; Google survey printouts attached to Applicant’s April 5, 2021 response,
`at TSDR pp. 11-14.
`
`33 Id.
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`Serial No. 87981611
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`were presented with: “The term US SPACE FORCE points uniquely and
`
`unmistakably in my mind to:” and offered the following choices: “None of these … A
`
`branch of the U.S. military … Donald J. Trump … NASA … a Netflix television
`
`show.”34 The percentages of responses given by respondents were, respectively: 24.6%
`
`- 22.5% - 22.2% - 20.6% - 10.2%.35 Applicant argues that “this survey evidence support
`
`the common sense argument that the mark no longer points uniquely and
`
`unmistakably to” either “the U.S. Government, Former President Trump, or the U.S.
`
`Space Force’s previously used name or identity or a close approximation.”36
`
`It is well-established practice for the Board to take a more permissive approach to
`
`the admissibility and probative value of evidence in an ex parte proceeding versus
`
`treatment of such evidence in an inter partes proceeding. See, e.g., In re Canine
`
`Caviar Pet Foods, Inc., 126 USPQ2d 1590, 1597 (TTAB 2018); In re Sela Products
`
`LLC, 107 USPQ2d 1580, 1584 (TTAB 2013) (“...the Board does not, in ex parte
`
`appeals, strictly apply the Federal Rules of Evidence, as it does in inter partes
`
`proceedings.”). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
`
`PROCEDURE (TBMP) § 1208 (June 2022). Nevertheless, we must consider the survey
`
`methodology and, in this instance, we have little to no information regarding how the
`
`survey was conducted, other than what is purportedly shown in the Google printouts.
`
`In re Van Valkenburgh, 97 USPQ2d 1757, 1767 (TTAB 2011) (finding “no basis on
`
`
`34 Id.
`
`35 Id.
`
`36 12 TTABVUE 25.
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`Serial No. 87981611
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`which to conclude that the survey is based on scientifically valid principles” where
`
`the survey consisted of questionnaires distributed to an unknown number of people
`
`who filled them out and mailed them back to applicant’s counsel). Indeed, the survey
`
`is not supported by an affidavit or declaration.
`
`In any event, putting aside the flaws that diminish the survey’s reliability and
`
`overall probative value, the results fail to support Applicant’s argument that US
`
`Space Force does not point to the branch of the U.S. Armed Forces. As the Examining
`
`Attorney points out, three of the possible responses (“A branch of the U.S. military …
`
`[former U.S. President] Donald J. Trump … NASA”) account for nearly two-thirds of
`
`the responses and these responses may be understood as generally pointing to
`
`“agencies and instrumentalities of the U.S. Governmental body, acting on its behalf
`
`and under its authority” and “all represent the U.S. Government.”37
`
`4. Applicant’s Other Arguments
`
`Applicant argues that the proposed mark “cannot be said to point uniquely and
`
`unmistakably” to the U.S. Space Force because the term “Space Force” is a “generic
`
`term which refers to the influential persons and enterprises which exert their power
`
`and energy towards conducting operations in space [and] does not refer just to the
`
`U.S. government and its military.”38 This argument fails because Applicant is
`
`ignoring the prefix “US” (or U.S.) and the fact that the proposed mark is US SPACE
`
`FORCE, not simply “Space Force.” While the term “space force” may refer to other
`
`
`37 14 TTABVUE 14.
`
`38 12 TTABVUE 18.
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`Serial No. 87981611
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`entities or that other countries may have “space forces,” is irrelevant; there is only
`
`one military branch designated “U.S. Space Force” and the public will readily
`
`understand the proposed mark as pointing uniquely to that military branch. As the
`
`Examining Attorney makes the comparison, this is “similar to the U.S. Army, U.S.
`
`Navy, U.S. Air Force, U.S. Marines or U.S. Coast Guard.”39 Thus, while other
`
`countries may have armies, navies, and air forces, when any of these generic terms
`
`is prefaced with U.S., it helps point uniquely and unmistakably to a specific military
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`branch within the U.S. Armed Forces.
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`Applicant also argues that the “U.S. Government, Former President Trump, or
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`the U.S. Space Force … are separate entities” and the Examining Attorney “has not
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`identified one specific entity or person to which the mark identifies.”40 Applicant
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`asserts that “the Examining Attorney has real difficulty identifying the one specific
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`entity or persona to which US SPACE FORCE points,” and cites to various Office
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`Actions where the Examining Attorney mentions former President Trump, the U.S.
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`Government, as well as the particular military branch, U.S. Space Force.41
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`The Examining Attorney counters that “[i]n this case, the agencies and
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`instrumentalities of the U.S. Government are its President and its branches of the
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`military,”42 and “[h]ere, the U.S. Government, through its President, initiated and
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`39 14 TTABVUE 12.
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`40 12 TTABVUE 22.
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`41 Id. at 22-23.
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`42 14 TTABVUE 10.
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`Serial No. 87981611
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`began identifying its Space Force before the instant application was filed.”43 The
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`“prior informal references to the US Space Force gave rise to a protectable interest”
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`and “the U.S. Government has rights to control use of this identity.”44
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`We agree with the Examining Attorney to the extent that various governmental
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`entities, including the broad term U.S. Government to President Trump to the agency
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`U.S. Space Force, can all be characterized as government instrumentalities and used
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`interchangeably for purposes of explaining the origin and creation of the latest
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`military branch of the U.S. Armed Forces, namely, the U.S. Space Force. Indeed, due
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`to the structure of the U.S. government, a very general term, and the President, who
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`is the Commander in Chief of the U.S. Armed Forces, including the U.S. Space Force,
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`it is certainly feasible that each of these entities may have a role or be attributed with
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`responsibility for the military branch known as U.S. Space Force. It is evident that
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`the then President, Donald Trump, helped create the moniker “U.S. Space Force” and
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`the military branch can be characterized more broadly as part of the U.S.
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`government. None of these facts negates or detracts from Applicant’s proposed mark
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`being understood as pointing to that branch of the Armed Forces.
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`In sum, we are not persuaded by any of Applicant’s arguments, but find that the
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`record establishes that Applicant’s proposed mark, US SPACE FORCE, will be
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`understood as pointing uniquely and unmistakably to the branch of America’s
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`military “U.S. Space Force.”
`
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`43 Id. at 11.
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`44 Id.
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`Serial No. 87981611
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`C. 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
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`Applicant does not argue that it has any connection or affiliation with the U.S.
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`Space Force and, indeed, the record makes clear that it does not. The evidence also
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`establishes that the U.S. Space Force has received considerable publicity in the
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`relative short time since it was created. As already discussed, President Trump’s
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`announcement regarding the creation of U.S. Space Force garnered widespread
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`media attention and various major national news sites have continued to cover the
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`military branch’s growth. In addition, U.S. Space Force’s popularity is reflected by,
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`and has been accentuated by, multiple seasons of the Netflix show that parodies the
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`military branch.
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`D. Conclusion
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`Applicant’s proposed mark, US SPACE FORCE, falsely suggests a connection to
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`the U.S. Space Force, a branch of the U.S. Armed Forces and a U.S. governmental
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`institution. The proposed mark is identical to, and points uniquely and unmistakably
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`to this military branch of the U.S. Armed Forces. Because of the U.S. Space Force’s
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`fame and reputation, the public would mistakenly believe that Applicant has a
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`connection with the U.S. Space Force should US SPACE FORCE be used by Applicant
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`on the goods identified in the application.
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`II. Constitutionality Argument
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`Applicant makes the cursory argument that “the false suggestion of a connection
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`ground for refusal in Section 2(a) violates foundational common law principals and is
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`Serial No. 87981611
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`unconstitutional and, as such, is ripe for similar review and treatment by the
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`Supreme Court.”45 In support, Applicant relies on the Supreme Court decisions
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`holding that certain provisions of Section 2(a) are no longer valid grounds on which
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`to refuse registration, because they violate the “Free Speech Clause” of the First
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`Amendment to the United States Constitution. Iancu v. Brunetti, 139 S. Ct. 2294,
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`2019 USPQ2d 232043 (2019) (immoral or scandalous marks); Matal v. Tam, 137 S.
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`Ct. 1744, 122 USPQ2d 1757 (2017) (disparaging marks). Applicant goes on to argue,
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`without citing any authority, that “any grant of a monopoly outside of [patents and
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`copyrights] is an illegitimate legislative amendment to the U.S. Constitution.”46
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`Subsequent to the Brunetti and Tam decisions, the Board addressed the
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`constitutionality of Section 2(a)’s false suggestion of a connection ground for refusal
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`and ultimately rejected this challenge:
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`It is well-settled that “[t]he government may ban forms of communication
`more likely to deceive the public than inform it ....” Cent. Hudson Gas &
`Elec. v. Pub. Serv. Comm’n, 447 U.S. 557, 563 (1980). Unlike the
`disparagement clause found unconstitutional in [Tam], or the immoral or
`scandalous clause struck down in Brunetti, the false suggestion clause
`directly furthers the goal of prevention of consumer deception in source-
`identifiers. Congress acts well within its authority when it identifies
`certain types of source-identifiers as being particularly susceptible to
`deceptive use and enacts restrictions concerning them. Cf. S.F. Arts &
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`45 12 TTABVUE 25.
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`46 Id. In this regard, we point out that Congress’ authority to pass laws regarding trademarks
`emanates from the “Commerce Clause” of the Constitution. Person’s Co., Ltd. v. Christman,
`900 F.2d 1565, 1568 (Fed. Cir. 1990) (“power of the federal government to provide for
`trademark registration comes only under its commerce power”). There is no dispute this is
`different from the clause specifically allowing Congress to pass laws to “promote the progress
`of science and the useful arts, by securing for limited times to authors and inventors, the
`exclusive right to their respective writings and discoveries.” U.S. Const. Art. 1, § 8, cl.
`8; Golan v. Holder, 565 U.S. 302, 132 S. Ct. 873, 887–888 (2012) (“Perhaps counter-intuitively
`for the contemporary reader, Congress’ copyright authority is tied to the progress of science;
`its patent authority, to the progress of the useful arts.”).
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`Serial No. 87981611
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`Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 3 USPQ2d 1145, 1153
`(1987) (“Congress reasonably could conclude that most commercial uses of
`the Olympic words and symbols are likely to be confusing.”).
`
`In re Adco Industries - Technologies, L.P. 2020 USPQ2d 53786, *10 (TTAB February
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`11, 2020). We agree with the reasoning in In re Adco and reject Applicant’s argument
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`in this appeal that the false suggestion of a connection refusal is unconstitutional.
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`Decision: The refusal to register Applicant’s mark US SPACE FORCE based on
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`a false suggestion of a connection with the U.S. Space Force, under Section 2(a) of the
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`Trademark Act, is affirmed.
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`