Federal Circuit Upholds Refusal of “US SPACE FORCE” Trademark for Suggesting Government Affiliation

In In re Foster, APC, No. 23-1527 (Fed. Cir. May 7, 2025), the Federal Circuit affirmed the TTAB’s refusal to register the mark “US SPACE FORCE” pursuant to Section 2(a) of the Lanham Act because the mark falsely suggested a connection with the U.S. government.

In 2018, the Trump Administration announced plans to form a branch of the military called the “Space Force.” Soon after, Thomas Foster filed a trademark application for “US SPACE FORCE.” A few months later, the president issued a formal directive to Congress to create the U.S. Space Force, and Congress established it as a military branch. The TTAB determined that Mr. Foster’s mark gave a false suggestion of a connection with the U.S. government by applying the four-factor Notre Dame test. As part of its analysis, the TTAB considered facts that post-dated the trademark application’s filing date, including the president’s directive.

On appeal, Mr. Foster argued that determining a false connection can be based only on evidence from before the application’s filing date. The Federal Circuit, however, determined that under existing precedent and Section 2 of the Lanham Act, evidence that comes into existence during the examination process can be considered. The court therefore found that the TTAB’s findings were supported by substantial evidence, including post-filing date evidence regarding the president’s directive and related news coverage.