Trump’s Space Force Already Lost Its First Battle

When Donald Trump has discussed the newest branch of the U.S. armed services, he struck a bellicose tone. “Space is a war-fighting domain just like the land, air and sea,” the president told an audience of Marines in March 2018. Two years later, after Congress appropriated money for his vision for a Space Force, and Trump held an Oval Office ceremony to unveil the official flag of the unit, he added that it was high time the country moved to protect strategic American space infrastructure. “As you know, China, Russia, perhaps others, started off a lot sooner than us,” Trump said.

But his administration has proven dovish when it comes to protecting the “Space Force” name itself. On May 29, Netflix premiered its comedy series Space Force, from The Office showrunner Greg Daniels and star Steve Carell. The U.S. military has done nothing to stop the streamer’s satirical take, nor could it thanks to the First Amendment. But less noticed is how, around the globe, the streaming giant has outmaneuvered the U.S. government to secure trademark rights to “Space Force” in Europe, Australia, Mexico and elsewhere. Meanwhile, 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.

That’s not necessarily a problem. Netflix can produce a television series without confusing consumers, just as the military can train fighting astronauts without anyone mistakenly thinking the streamer is sponsoring such an academy.

Conflict potentially arises when trademark users begin trafficking in similar products. Imagine for a moment that a “Space Force” jumper begins appearing in retail stores. Who’s selling? The U.S. military or Netflix? Trademarks help clarify the source of goods and services.

For many years, the U.S. government was lax when it came to registering trademarks for its military assets and didn’t put up much of a fight when others made claims. For example, Paramount Pictures applied to register “JAG” six times between 1995 and 2005 — spanning the time that its CBS series was on the air — and the applications were not opposed by the government.

Then, in 2007, the Defense Department issued a directive establishing a branding and trademark licensing office, Foreign Policy magazine once reported.

Soon thereafter, applications for registrations exploded as the military gobbled up everything from “Special Forces” to “NORAD tracks Santa.” In 2011, the Navy even got around to finally registering JAG-related marks. For one brief moment, the issue of military trademarks earned significant attention. That would be in May 2011, when, days after the death of Osama bin Laden, Disney applied for a registration on “Seal Team 6” — and not just for entertainment, either. Disney wanted a registration for clothing, footwear and headwear. Within weeks, upon public outcry, Disney abandoned its pursuit.

Now comes the introduction of the U.S. Space Force, and given Trump’s history as a businessman, one would expect his administration to be quite aggressive in securing trademarks. After all, during the time when Trump starred on The Apprentice, the Trump Organization was mostly just licensing the “Trump” brand to developers of hotels, casinos and golf courses. To put it bluntly, fame was Trump’s primary commercial asset while trademarks ensured a way to exploit that.

But aggression on the trademark front hasn’t been a hallmark of the Department of Defense under President Trump — and the best place to find proof of that may be with respect to Netflix’s “Space Force” trademark registrations. 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. Records show that Netflix was submitting applications for “Space Force” around the world as early as January 2019. In other words, the Department of Defense was caught sleeping.

Will this end up in legal warfare? Some trademark lawyers point out Trump’s unpredictable nature. “Here, the branch is so new, and the executive branch so commercialized, and the commander in chief so attention-seeking, that I’m not sure we can know quite what to expect,” says attorney Ed Timberlake.

Perhaps troublesome, the Air Force has an entire website devoted to intellectual property management and even includes a page devoted to “entertainment uses,” where potential licensees are told, “The proper use of symbols in feature films, documentaries, educational pieces, television shows, news programs and all other kinds of media is incredibly important. We want you to be able to tell a rich and engaging story while we put our best foot forward.”

Again, because of the First Amendment, the military would face a steep climb — perhaps a Sisyphean one — preventing Netflix’s use of “Space Force” in its Steve Carell series. Trademark law allows for parodies and descriptive uses, and when push comes to shove, broader uses too so long as there’s artistic relevance and nothing explicitly misleading.

But of course, distracting and expensive courtroom excursions do come up from time to time. See, for example, a government contractor’s recent battle over the use of Humvees in Call of Duty. Probably most worrisome for an entertainment producer like Netflix, other countries don’t have the same First Amendment principles nor “fair use” standards as America does. Would other countries really stand up to the U.S. military over a television series? Given the potential for being outmuscled if not outlawyered, IP attorney Jennifer Ko Craft at Dickinson Wright credits Netflix with foresight. “It’s a brilliant move to register worldwide,” she says.

In any respect, as the U.S. military embarks on a journey beyond the clouds and sky, the real-life Space Force hardly has its phasers set to fire. “At this time, we are not aware of any trademark conflicts with the fictional program Space Force produced by Netflix,” says an Air Force spokesperson. “We wish Netflix and the show’s producers the best in their creative depiction of our nation’s newest branch of the military.”

This story appears in the June 3 issue of The Hollywood Reporter magazine. Click here to subscribe.