CAFC Affirms TTAB: US SPACE FORCE Falsely Suggests a Connection with the United States
The CAFC upheld the Board's decision [TTABlogged here] affirming a Section 2(a) refusal to register the proposed mark US SPACE FORCE for a variety of goods in ten classes, including license plate frames, umbrellas, pillows, and toy spacecraft. The Board found that the mark falsely suggests a connection with the U.S. Space Force, a branch of the U.S. Armed Forces and a U.S. governmental institution. The CAFC ruled that the mark falsely suggested a connection with the United States (not just the Space Force), since the U.S. Space Force is an instrumentality of the United States. In re Thomas D. Foster, APC, 2025 USPQ2d 727 (Fed. Cir. 2025) [precedential]
Section 2(a) of the Lanham Act bars registration of a trademark that may “falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols." The Act defines "person" as including "the United States [and] any agency or instrumentality thereof." See Section 45.
Applicant Foster argued that (1) the Board improperly considered facts that post-date the application’s filing date and (2) the Board’s findings of fact under the first two parts of the four-part false connection test were not supported by substantial evidence. The CAFC disagreed.
Timeliness of the Evidence: In what appears to be an issue of first impression, the court held that
[t]he false connection inquiry can . . . include evidence that comes into existence during the examination process." It concluded that examinatinon continued through the Board's denial of Foster's request for reconsideration of the USPTO's final refusal (December 12, 2022). [Is the Board's reconsideration of its own decision really part of the "examination process"? - ed.] Foster failed to show that the Board relied on evidence that post-dated the decision on reconsideration, and so the court concluded that the Board did not err with regard to its assessment of the evidence.
False Connection: To establish that a proposed mark falsely suggests a connection with a person or an institution under Section 2(a), 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
- (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.
The Board found that all four elements of the test were satisfied, but Foster contended that the Board’s findings as to the first two were not supported by substantial evidence. The CAFC noted:
As an initial matter, the mark need not be identical to the name or identity. It would suffice if the US SPACE FORCE mark falsely suggests a connection to the United States, even if the U.S. Space Force entity had not come into existence. The issue is whether the US SPACE FORCE mark falsely suggests a connection to the U.S., which undeniably has been used. [sic!]. In this case, however, the United States was using the entirety of the mark, U.S. Space Force, during the relevant time.
The CAFC concluded that substantial evidence supported the Board's finding that Foster's mark "is the same as or a close approximation." [of the United States? of the U.S. Space Force? -ed.]. President Trump announced the creation of the U.S. Space Force in 2018, and it was established in September 2019 amidst continuing news coverage.
Likewise, substantial evidence supported the Board finding that Foster's mark "points uniquely and unmistakably to the United States, particularly a military branch called the U.S. Space Force:" The court again pointed to President Trump’s announcement and subsequent coverage in major news publications. In fact, the court noted, the mark and name are identical.
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TTABlogger comment: Applicant Foster is an IP attorney. He handled the appeal. WYHA? In my view, the court's discussion and analysis of the evidence was neither clear nor helpful. Why didn't it just stick with the Board's conclusion that Foster's mark falsely suggested a connection with the U.S. Space Force?
P.S.: Examination by the Examining Attorney ended on January 28, 2022. Maybe the CAFC picked the wrong date for the cut-off of evidence. However, it seemingly didn't make any difference anyway.
Text Copyright John L. Welch 2025.
posted by John L. Welch @ 5/08/2025
3 comments
3 Comments:
It's confusing to me what the Court is saying about the last time of the evidence to be considered in an appeal. The Court says that it is "the time of examination" or "the examination process." But that is unclear from subsequent wording. Is it the last time the Examining Attorney handles the case on examination--presumably the denial of applicant's request for reconsideration. Or is it the date of the Board's decision (the Court specifically mentions "Board") on a request for reconsideration of its decision on appeal. The Court mentions December 12, 2022, as the date the Board issued its decision, apparently on applicant's request for reconsideration of its decision affirming the refusal. Or did the Court mean to say the Examining Attorney's denial of applicant's request for reconsideration, and not the Board's. The dates of the Exam. Att's denial of a request for reconsideration and any Board denial of an applicant's request for reconsideration of its own final decision could be many, many months apart. (I did not check the Office records for those dates but a close reading of the Court's opinion is still confusing as to what is the last date for evidence to be submitted/considered.) If the Court meant the Board's decision on reconsideration, then, to me, that is not really the time of examination or the examination process.
Excellent question. The CAFC said that "the false connection inquiry can therefore include evidence that comes into existence during the examination process." Then it set the cut-off date as the date of the Board's denial of reconsideration of its own decision. How is that part of the "examination process"?
PS: Examination by the Examining Attorney ended on January 28, 2022, with a refusal of reconsideration at the USPTO level. I think the court got the wrong denial of reconsideration date, but it seemingly was harmless in light of the evidence that the Board considered.
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