The president commissioned the United States Space Force (USSF) in December 2019. The Space Force is a branch of the U.S. Armed Forces. From the foundation of the agency, the USSF has been involved in a dispute over intellectual property rights. Recently, Netflix has released ‘Space Force,’ a series starring Seve Carell. It appears that the newly minted military branch is losing a trademark battle with the Netflix show.
The comedy ‘Space Force’ has no connection to the military organization. They only share the same name. The new armed service branch has ended up entangled in a legal battle before it even launched any space missions. Only time will tell regarding the copyrights to the name Space Force.
Netflix Has Been Trying to Secure Trademarks
So far, Netflix has secured trademark rights to the show ‘Space Force’ in Australia, Europe, Mexico, and elsewhere. These countries do not follow the first-to-use legal doctrine. The Air Force, which is the branch through which Space Force is organized, has a pending application for trademark rights in the United States. Netflix is mostly interested in securing trademark rights for ‘Space Force’ for the purposes of creating merchandise.
The Status of Netflix’s Trademark System
The U.S. Patent and Trademark Office uses a first-to-use system to assign trademark rights. Netflix has submitted trademark applications for the Space Force program around the world since the beginning of 2019. The Air Force also filed a trademark application with the intent to use it in March 2019. However, the actual Space Force did not become an official organization until December of 2019.
If a legal battle takes place, Netflix may be able to prove that it was using the branding of the Space Force before the government. What happens if Netflix loses a legal battle? In this case, Netflix would still have a First Amendment right to keep selling merchandise related to the Space Force on the grounds that the merchandise would be related to parody and satire.
Where the Company Stands Now
Many trademark experts state that Netflix is at an advantage now, despite the fact that the Air Force filed an intent-to-use application. Netflix has availed the trademark in multiple markets. Once Netflix decides to roll out merchandise for Space Force, the company could become eligible to file a first-to-use application under Federal Trademark Law. Doing so would allow Netflix to assert a better title over the Space Force brand name.
Understanding Trademark Rights in the United States
In the case of Space Force, Netflix is attempting to trademark the phrase ‘Space Force.’
Trademarks protect names, words, symbols, sounds, or colors that distinguish goods or services. One of the most well-known trademarks is the shape of a Coca Cola bottle. Securing a trademark helps businesses protect their brands and products and allows them to market their products. The roar of the MGM lion is also trademarked.
Typically, the term ‘trademark’ refers to any mark that is used by the owners to identify the goods. Business owners can only identify physical goods. The goods can be natural, manufactured, or produced. The goods need to be sold or otherwise distributed or transported via interstate commerce. Business owners use service marks to identify intangible activities and identify services that one person performs for the benefit of another person, either for pay or otherwise.
The “First to Use” System in the United States and the ‘Space Force” Trademark
Netflix has been able to secure trademark rights for the title ‘Space Force’ in other countries because those countries recognize a different type of trademark law doctrine. The legal doctrine of “first to use” sets the United States apart from other countries. Here, it is the actual use of the designation as a mark that creates trademark rights and priority over other people. In other countries, the registration itself gives the owner trademark rights.
The ownership of the trademark goes to the first person to use the mark, not the first person to file the mark in the United States. Under federal law, someone asserting trademark rights can prove their rights through actual or constructive use. The federal circuit courts have held that even if you had a trademark registration that was later canceled, the common law rights will continue.
Creating the trademark is not enough to prove trademark rights. Instead, the owner needs to prove that he or she was the first to actually use the trademark in the stream of commerce. Thus, Netflix will need to prove that it was the first to use the ‘Space Force’ trademark in the stream of commerce to secure trademark rights in the United States. Use in commerce requires that you prove the following two elements:
- The company is used or displayed in the advertising or sale of the good or service, and
- The good or service is rendered in commerce
Keep in mind that advertising alone is not always enough to prove first use in the United States. Those asserting trademark rights must prove both elements. Likewise, courts will examine both elements when determining rights. A key issue in the Space Force trademark case will come down to when Netflix began advertising Space Force. They will also need to prove that they rendered the Space Force good in commerce.
The Benefits of Filing for Trademark Rights
The Space Force trademark issue demonstrates the importance of taking the time to establish trademark rights as soon as possible. While you are not required to register a trademark to assert your rights, doing so can help you in the long run. Taking the time to develop and protect your trademarks is more than just a cost of doing business; it is an investment in your future customer.
Contact Our Chicago Trademark Lawyers Today
If you are involved in a trademark dispute, or if you need to ensure your rights over a trademark,AU LLC can help. Our intellectual law firm represents clients all over the United States. Contact us today to schedule your initial consultation.