On May 29, 2020, Netflix released a new comedy television series starring Steve Carrell titled “Space Force.” It is a workplace comedy from one of the creators of “The Office” that focuses on the presumed sixth branch of the United States military. This concept is directly derived from the United States’ Space Force that was announced by President Trump and authorized by Congress on December 20, 2019.
By any standard, the existence of both things is somewhat of a farce. Making things even stranger is that no one seems to understand how names and titles and trademarks work, which led to a series of articles this week about the purported trademark rights to SPACE FORCE being lost by the United States government. This premise is ridiculous and this article will attempt to explain why this is a non-story.
I have written many articles for this blog and have given presentations on the differences between what is a “trademark” and what is a “trademark registration.” They are two different things but are almost universally treated as synonymous in pop culture and in media. I strongly encourage everyone with trademark rights to seek to acquire a formal trademark registration with the USPTO, but you do not need a piece of paper to establish trademark rights in the United States. There is a reason there is a difference between the “™” and the “®” designations.
Trademark rights are acquired the moment you use the mark in commerce in connection with particular goods and services. It’s that simple. It really is. The moment you begin using a name, phrase, logo, design, or title as a source-identifying mark to identify your product, you can enforce that mark against anyone who infringes your newfound trademark rights. There is no process for acquiring trademark rights other than “use in commerce.” This fact is why I often chastise anyone for using the word “trademark” as a verb. Because such colloquial uses of the term are highly misleading and often wrong.
Why is the SPACE FORCE trademark a story?
Netflix applied to register SPACE FORCE as a trademark in other countries around the world. Notably, Netflix, Inc. has not sought to register SPACE FORCE as a trademark in the United States (at least not yet). But on June 5, 2020, the Hollywood Reporter wrote a headline that “Trump’s Space Force Already Lost Its First Battle” – in reference to trademark rights. Within that article was the conclusion that “the Air Force merely owns a pending application for registration inside the United States based on an intent to use. Meaning that the feds have gotten a place in line but no confirmed trademark rights thus far.”
The first sentence in that quote is correct, but this legal conclusion is unfortunately not accurate. Yes, there is still a pending application to register SPACE FORCE with the USPTO by the United States government. In fact there are multiple applications (U.S. App. No. 88924951, filed May 20, 2020; and U.S. App. 88338255, filed March 13, 2019). Fun fact? There’s already a registered U.S. trademark for SPACE FORCE… owned by a brewing company. That trademark is for “beer.” No joke. It is U.S. Reg. No. 5608716, registered on November 13, 2018.
Meanwhile, the moment Congress approved and authorized the Space Force in December 2019 and began staffing the organization, which likely constituted “use in commerce” in the United States sufficient to establish trademark rights.
This article by the Hollywood Reporter caught the attention of numerous other trade journals, each of whom immediately jumped to the wrong conclusion. Even the AV Club wrote a news story about this with an original title of “Netflix is having no trouble trademarking Space Force.” Note the improper verb usage of “trademarking.” Here’s a Google® search result of other stories on the same topic:
This is a non-story. The Department of the Air Force is not at all “losing” any race to protect SPACE FORCE as a trademark. If anything, the government can easily establish priority of use for SPACE FORCE before Netflix can claim rights in the name “Space Force” for its television show. In the race to protect trademark rights, priority of use almost always trumps the filing date.
Even if Netflix, Inc. seeks to register the name “Space Force” as a trademark, there may not be any issues with the government. The two government applications are currently for goods and services that do not include television shows or entertainment or media. The first application is for “clothing” and the second application covers multiple classes of goods, but not television programs or entertainment services.
Do you want a funny twist to the story? There already is a pending application for SPACE FORCE covering “Entertainment services in the nature of an ongoing dramatic television series” in Class 41. This application was filed on January 18, 2019 by Thomas D. Foster of APC Corporation in California as an “intent to use” application (U.S. App. No. 88267739, though it has recently been issued a final office action refusing registration.
Everyone is racing to protect this name, even though this is not how trademarks work.
What about consumer confusion?
Trademarks and trademark rights exist to protect the consumer.
In the absence of a likelihood of confusion, there can be no trademark infringement. It is theoretically possible for both the Department of the Air Force and Netflix, Inc. to both simultaneously own trademark rights in the name “Space Force.” They can both join the brewing company as owners of a SPACE FORCE® trademark.
Most importantly, it is quite unlikely that anyone will confuse Steve Carrell’s comedic interpretation of the Space Force with the real life government entity. This is not even the first time there is an overlap between government entities and titles of TV shows or movies. CBS currently has television shows called “FBI” and “S.W.A.T.” which I find to be lazy. No one is confused by these titles. There was a movie titled “U.S. Marshals” that starred Iron Man. No one was confused.
These titles can peacefully co-exist with the government entities of similar or exact same names. In fact, many government entities encourage these shows. The movie “Top Gun” is the greatest advertisement for recruiting by the U.S. Navy and there was only a loose affiliation between the filmmakers and the government on that project. No one was confused.
This is a non-story. No government trademark rights are currently at risk by any of Netflix’s uses of the name “Space Force.” Star Trek’s creators may have some grievances to air, however.