“Space Force” Trademark Controversy Highlights Why Timing Matters

Astronaut in space

Timing is everything when it comes to registering trademarks. Case in point: “Space Force.” Two legally exist right now. One is the sixth U.S. military branch, currently under the Department of the Air Force. The other is the Netflix comedy series starring Steve Carrell.

While it’s unintentionally humorous that a satirical TV show with the same name debuted before the actual U.S. Military branch became operational, the trademark controversy is no laughing matter. There could be a problem when Netflix and the U.S. Government sell merchandise with the name “Space Force”.

This “space race” has Netflix in the lead

In 2018, Donald Trump announced plans for a U.S. Space Force. Congress approved funding in late 2019, and the Netflix series debuted in late May 2020. But according to reports from The Hollywood Reporter, Netflix filed for trademark applications in January 2019 and proceeded with filings in Australia, Mexico, and parts of Europe. The Air Force, meanwhile, has a single, pending application in the U.S. for an “intent to use.”

It doesn’t seem as though the U.S. Military or Netflix is concerned for one being confused for or sponsored by the other. However, there’s a potential conflict with merchandising.

Who gets to sell “Space Force” goods? “Although the United States operates on what’s called a ‘first-to-use’ trademark registration system, where priority is based on actual use in commerce rather than who gets to the U.S. Patent and Trademark Office first, many other countries operate on a ‘first-to-file’ basis,” the Hollywood Reporter notes.

Military-related trademark controversies

We’ve been here before. The question is, will the U.S. Military go there again? Here’s a brief but fascinating history of some of its recent trademark cases.

  • Between 1995- 2005: Paramount Pictures applies to register “JAG” six times over the ten year period the CBS series was on the air. The applications were not opposed by the U.S. government.
  • 2007: The U.S. Department of Defense issues a directive establishing a branding and trademark licensing office.
  • After 2007: The number of times the military applies for trademark registrations grows tremendously, with applications for everything from “Special Forces” to “NORAD tracks Santa.”
  • 2011: The U.S. Navy registers JAG-related marks.
  • May 2011: Days after the death of Osama bin Laden, Disney applies for registration on “Seal Team 6” for entertainment, clothing, footwear, and headwear. Disney abandons its pursuit upon public outcry.
  • 2017: The U.S. Army files a notice of opposition with the Trademark Office against the Golden Knights, the Las Vegas National Hockey League team, over its use of the service’s elite parachute unit’s name and similar branding. The two eventually came to a trademark “coexistence agreement.”
  • 2017: The Marine Corps takes on Disgruntled Decks, a “Cards Against Humanity”-style game filled with inside jokes and crass humor. Disgruntled Decks had included the Marine Corps name and insignia in some of its playing cards. Officials found the content to be disrespectful to women in the military. The company subsequently removed the Marine Corps name and insignia from their decks.

The bottom line

Successful trademarking is about timing with a capital T. There are major financial gains or consequences to the “What’s in a name?” game. Be sure to approach the filing process carefully. Let’s have a conversation to help you proceed quickly and correctly.

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