On the 20th of December, 2019 the United States Space Force (USSF) was commissioned as an independent branch of the US Armed Forces. From its very foundation, the USSF seems to have been caught in a legal tussle with Netflix over a very interesting issue of Intellectual Property Rights. The release of “Space Force” starring Steve Carell on Netflix has marked the beginning of a trademark battle over the use of the name “Space Force.”
This discussion will, therefore, be aimed at understanding how the application of the trademark law would be able to untangle this dispute between the Department of Defense (DoD) and Netflix. It is pertinent to note that this is not the first instance of IP conflict arising out of the Federal Administration’s laxity to incorporate military trademarks in the legal framework. The above-mentioned conflict, of a potential trademark infringement, is bound to make headway once there is a sale of merchandise by either party. The ramifications of US IP laws will have to be dealt with as shown in this article.
As per the law in force in the United States, trademark protection to two separate entities, bearing the same name, may be allowed and extended the protection of law, when they operate within the confines of their separate and unrelated industries. This situation, however, is rather precarious when the two entities with identical trademarks decide to bring their operations to the same industry, such as commerce, as can be a possibility in the instant case.
In the United States, the law stipulates that the ownership of the trademark would be granted on the first-to-use basis as opposed to the widely accepted principle of first-to-file. This implies that trademark rights would not be granted on the basis of mere registration but upon its actual use in commerce.
It must be noted here that while the idea of USSF was proposed by President Trump back in 2018, it only acquired the recognition as an official branch of the US armed force in December 2019. In the meantime, not only did Netflix announce the show Space Force, but even filed for registration of the trademark in various regions by January 2019. While approving both the applications may appear to be viable in the situation (since the entities are involved in separate industries), as it currently stands, “likelihood of confusion” (as described by the USPTO) is likely to arise if both decide to launch and sell merchandise under the name.
Presently, Netflix has secured the protection rights for the television series in various regions such as Australia, Europe and Mexico (Europe and Mexico do not follow the first-to-use principle) and has applied for registration of the mark for a wide range of products. On the contrary, the US Air Force has only filed an intent-to-use application, which is currently pending before the USPTO. Thus, despite the fact that no specific applications seeking protection of rights have been filed in the US by Netflix, it appears that the latter may be able to show that it made use of the branding first and is therefore entitled to trademark protection. However, even if Netflix loses the case, it would still have a First Amendment right to continue selling the Space Force merchandise on grounds of satire and parody.
On reading into the present trademark conflict between the US Armed Forces and Netflix, it becomes clear that the online streaming service company has taken a head start in availing exclusive trademark rights to the use of “Space Force.” The present case highlights the US DoD’s disregard for the importance of expeditiously securing a trademark for commercial use when the project was in its initial stages.
At the current juncture, Netflix can be said to be at an advantage despite the US Air Force’s intent-to-use application filed with the USPTO, since it has availed the trademark in various regions across the globe and can very well begin to market its merchandise thereafter. Once Netflix rolls out its merchandise, it would become eligible as per Federal Trademark Law to file a first-to-use application, thereby claiming a better title over the brand name “Space Force.”
This conundrum can spell a great loss for the young military outfit just because the administration did not care enough to pay the requisite attention to the legal aspect of protecting an idea in its infancy and efficient research which goes into securing a trademark. Thus, it appears that the first battle of the newly established space warfare wing of the US Armed Forces would have to take place within the four walls of a courtroom instead of the vacuum of space.
Abhigyan Tripathi and Rishabh Chhabaria are second-year law students at the Rajiv Gandhi National University of Law (RGNUL), Punjab, India.
Suggested citation: Abhigyan Tripathi and Rishabh Chhabaria, “Space Force” Intellectual Property: The US Armed Forces v. Netflix, JURIST – Student Commentary, June 30, 2020, https://www.jurist.org/commentary/2020/06/tripathi-chhabaria-space-force/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org.
