US SPACE FORCE Applicant Files Certiorari Petition Seeking Reversal of Section 2(a) False Connection Refusal

Applicant Thomas D. Foster, APC has filed a petition for writ of certiorari at the Supreme Court [pdf here], seeking to overturn the refusal to register 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. [TTABlogged here]. The CAFC affirmed, ruling 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] (Petition denied on October 6, 2025).

QUESTIONS PRESENTED

1. Whether the Federal Circuit improperly considered government developments that postdate a trademark applicant’s filing to support a refusal under Section 2(a) of the Lanham Act, despite the applicant's statutory right to constructive use based on the application’s filing date.

2. Whether the Federal Circuit improperly deferred to the USPTO’s statutory interpretation of Section 2(a) after this Court’s ruling in Loper Bright Enterprises v. Raimondo, which reaffirmed the judiciary’s duty to independently interpret the law under the Administrative Procedure Act.

3. Whether Section 2(a)’s prohibition against marks that “falsely suggest a connection” is unconstitutionally vague as applied to an intent‑to‑use trademark application which which the USPTO claims references a fictionalized entity that did not exist at the time of filing.

Applicant filed its application to register in 2018 after hearing President Trump speak, "perhaps jokingly," about creating a new military branch called the U.S. Space Force, but that branch wasn't created until a year later. Applicant objected to the reliance on evidence dated after his filing date, but the CAFC held, in what appears to be an issue of first impression, that "[t]he false connection inquiry can . . . include evidence that comes into existence during the examination process."

SUMMARY OF ARGUMENT

The decision below permits the government to deny trademark registration based on post hoc determinations of association with political figures and institutions, despite Petitioner’s earlier filing date and no actual connection. This undermines the constitutional limits on viewpoint discrimination and grants impermissible deference to administrative interpretations in violation of Loper Bright. The refusal also creates tension within the Lanham Act itself, specifically between § 1052(a) and § 1057(c). Review is necessary to protect constitutional rights and clarify the bounds of trademark law.

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TTABlogger comment: I think the chances of the Court granting this petition are slim to none. How about you?

Text Copyright John L. Welch 2025.