While Space Force, the American comedy series created by Steve Carell and Greg Daniels that launched ten episodes on May 29, 2020 may be in a race to put American boots on the moon again, Netflix Studios is in its own race to acquire worldwide trademark rights in the name SPACE FORCE.
Starting as early as January 31, 2019, Netflix Studios LLC filed several foreign applications to secure international trademark rights in the name SPACE FORCE in Class 41, covering entertainment services in the nature of a television comedy series. Specifically, applications were filed for the mark SPACE FORCE in Australia, Canada, Europe and Mexico in Class 41. Several months later, Netflix filed additional applications in Australia, Canada, Europe and Mexico to register SPACE FORCE to cover Classes 16, 25 and 28 to secure its highly anticipated trademark licensing of the name SPACE FORCE on a variety of merchandise, including stationery, apparel, headwear, sporting goods and toys.
On December 20, 2019, one month prior to Netflix’s filing of its foreign applications of SPACE FORCE, the U.S. Space Force (“USSF”), the sixth and youngest branch of the U.S. Armed Forces, was created as part of the 2020 National Defense Authorization Act. The USSF is part of the Department of the Air Force (“Air Force”).
Nearly two months after the filing of Netflix’s initial foreign applications, the Air Force filed an intent to use application with the United States Patent and Trademark Office on March 13, 2019 to federally register the name SPACE FORCE in Class 25 for clothing under Application Serial No. 88338255. This application is currently suspended from further examination based on five earlier filed third party applications of SPACE FORCE marks (e.g. JOIN SPACE FORCE, US SPACE FORCE). While some of the earlier filed applications have since abandoned, at least one was approved and published for opposition.
Although the Trump administration first announced the plan for a U.S. independent space force in June, 2018, the Air Force first filed its U.S. intent to use application to federally register the name SPACE FORCE almost a year later! Given that the third party applications were filed after the Trump administration’s announcement it is apparent that the U.S. Trademark Office did not refuse the third party applications on the grounds of creating a false association with the Department of the Air Force. Also, it is clear that the Trump Administration’s creation or contemplation of an independent space force did not immediately bestow exclusive trademark rights in the name SPACE FORCE.
Air Force did however file an intent to use application to federally register the acronym USSF. On February 2, 2020, six weeks after the creation of the U.S. Space Force, the Air Force filed an application to federally register USSF as a trademark with the Trademark Office based on intent to use this mark on “clothing, namely, t-shirts, sweatshirts, sweatpants, athletic shorts, swimsuits, jackets, coats, golf shirts, athletic socks, sweatbands, ball caps and visors.” This application, filed under Application No. 88782122, was approved and recently published for opposition in the Trademark Office Official Gazette on June 9, 2020. The Air Force did not file any additional applications to register USSF.
Nearly two years after the initial announcement of the creation of a U.S. space force, the Air Force filed its second intent to use application of SPACE FORCE. Just over one week before the May 29, 2020 Netflix series premiere of Space Force, the Air Force filed Application Serial No. 88924951 on May 20, 2020 with the Trademark Office. This application for SPACE FORCE covers the following goods and services:
- Class 6: Metal name plates; plaques of common metal for use as awards; sculptures made of non-precious metals; trophies of common metal.
- Class 12: Airplanes; helicopters; space vehicles.
- Class 14: Clocks; key chains; lapel pins; non-monetary coins; ornamental lapel pins; rings being jewelry; sculptures made of precious metal; tie tacks; watches; metal key chains.
- Class 16: : Books in the field of The Department of the Air Force and Department of the Air Force Aircraft; business cards; calendars; coasters made of paper; daily planners; decals; desk top planners; greeting cards; Informational flyers featuring educational information to educate the public on Department of Air Force programs; log books; note paper; notebooks; paperweights; postcards; posters; printed awards; printed certificates for use as awards; stationery; telephone calling cards, not magnetically encoded; writing paper pads; ball-point pen and pencil sets; printed books in the field of The Department of the Air Force and Department of the Air Force Aircraft; stationery-type portfolios; three-ring binders.
- Class 18: Backpacks; briefcases; duffle bags; gym bags.
- Class 20: Non-metal name plates; non-metal trophies.
- Class 21: Beer mugs; shot glasses; travel mugs
- Class 24: Bed blankets; bedspreads; comforters; fabric flags; throws; towels; blanket throws.
- Class 26: Belt buckles; belt buckles of precious metals.
- Class 28: Golf clubs; paper airplanes; playing cards; plush toys; toy airplanes; toy cars; toy vehicles; scale model airplanes; stuffed toy bears; stuffed and plush toys.
- Class 34: Cigarette lighters of precious metal.
- Class 35: Promoting public awareness of the need for the United States Space Force; Association services, namely, promoting public awareness of the United States Space Force; production and distribution of radio and television commercials.
- Class 41: Educational services, namely, providing courses of instruction at the college level and distribution of course material in connection therewith; educational services, namely, providing course of instruction at the college level in the fields of The United States Space Force; training in the use and operation of weapons systems; systems related to the support of the weapon systems; and trainers for these weapon systems and support systems; providing on-line information and news in the field of employment training.
Considering that it currently takes approximately three months for an initial examination to take place, the Air Force’s most recent application of SPACE FORCE has not yet been examined in the Trademark Office. As seen in the Air Force’s prior companion application of SPACE FORCE covering Class 25, it is apparently not a slam dunk that the Air Force’s multi-class application will be approved. In fact, it is highly likely that this application will also be suspended from examination based on the earlier filed applications of SPACE FORCE for uses included within the above categories.
It is noted that Netflix Studios has not filed any applications to register SPACE FORCE with the Trademark Office nor has the Air Force filed any applications for SPACE FORCE internationally. However, if one were to consider the Trademark Office the “final frontier” of trademark rights, it would be very difficult to determine whether Air Force has won the space race in the U.S. The Air Force has certainly lost the space race in those countries where Netflix has already filed applications, namely, Australia, Canada, Europe and Mexico.
In hindsight, the Air Force should have filed applications of SPACE FORCE in the Trademark Office and internationally as early as the first announcement of an independent U.S. space force in 2018 in order to reserve its right to license the name in the various categories of merchandise.