Space Race to IP Rights

Space Race to IP Rights

Space Force, a Netflix series starring Steve Carell, is winning the race against the United States Space Force (“USSF”) in securing global trademark rights for “Space Force.” Is the U.S. military really competing with Netflix for a trademark of its sixth and newest branch? Is this real, you ask? It’s 2020 – we’re all wondering the same thing. Let’s start from the beginning.

A trademark is a word, phrase, slogan, symbol, or design that identifies the source of goods or services and distinguishes the source from its competitors.^[1] For example, Nike trademarked the Nike swoosh symbol, which distinguishes a pair of Nike sneakers from sneakers produced by its competitors. In the United States, the U.S. Patent and Trademark Office (“USPTO”) uses a “first-to-use” standard in trademark registration, meaning that trademark rights are secured by the first entity to use the mark in commerce.^[2] Most other countries used a “first-to-file” standard in trademark registration. In these countries, trademark rights are secured by the first entity to file a trademark application for the mark.^[3]

The United States Space Force currently has a pending USPTO application for two “Intent-To-Use” trademarks, meaning that the marks have not yet been used in commerce.^[4] Why did the USSF only submit an application to trademark “Space Force” in the United States? Well, in January of 2019, prior to the USSF’s efforts to protect its intellectual property rights, Netflix secured global trademark rights to “Space Force” in Europe, Australia, Mexico, and “elsewhere.”^[5] This is significant because these countries and regions around the globe have “first-to-file” trademark registration standards. The USSF is now barred from trademarking its sixth branch in these regions and countries around the world.

What else does this mean for the USSF? In the United States, the “first-to-use” trademark registration standard means that Netflix may have intellectual property rights to “Space Force” even though it does not have any trademarks or pending applications in the US. Down the line, the USSF could try to prevent Netflix from using “Space Force” as the title for its series. Although the First Amendment and U.S. trademark law allow parodies as long as they are not explicitly misleading,^[6] as The Hollywood Reporter points out, the Air Force is seemingly aggressive when it comes to protecting its intellectual property:

“[T]he Air Force has an entire website devoted to intellectual property management and even includes a page devoted to ‘entertainment uses,’ where potential licensees are told, ‘The proper use of symbols in feature films, documentaries, educational pieces, television shows, news programs and all other kinds of media is incredibly important. We want you to be able to tell a rich and engaging story while we put our best foot forward.’”^[7]

Though a trademark lawsuit arising out of the title of the Netflix show is unlikely, there is no guarantee that the USSF will not try.

Another conflict that could arise between Netflix and the USSF is in the context of merchandise. In the United States, trademark infringement occurs when there is an unauthorized use of a confusingly similar mark for the same or closely related goods and/or services.^[8] While most people wouldn’t confuse most of the goods and services rendered by Netflix and a branch of the U.S. military, it is possible that people confuse “Space Force” clothing and other merchandise created by both entities. If you are wondering why Netflix would be allowed to create “Space Force” merchandise in the US if the USSF has it trademarked, think back to the “first-to-use” standard. Netflix used the trademark first, so it can keep using the mark even if the USSF registers it first.

Fortunately, all of these conflicts are mere speculation. According to The Hollywood Reporter, a U.S. Air Force spokesperson stated that it is “not aware of any trademark conflicts” between the USSF and Netflix.^[9] Once again, it’s 2020 – we’ll see.