In a story that would make a screenwriter jealous, it seems that the newly-minted U.S. Space Force may have lost trademark rights in the term “Space Force” to Netflix.

On June 18, 2018, President Trump announced the U.S. Space Force which came to life on December 20, 2019, with the signing of the National Defense Authorization Act for Fiscal Year 2020, as a division of the Air Force. Netflix debuted its “Space Force” comedy series on May 29, 2020.

The problem for the Air Force is that Netflix filed its earliest trademark application for “Space Force” on August 2, 2018, in Jamaica. Why Jamaica? Perhaps because it’s a small country without an online trademark database, and is a member of the Paris Convention for the Protection of Industrial Property which follows the “Madrid Protocol” for international trademark applications. Netflix was able to quietly file its application, and then had six months to file additional trademark applications under the Madrid Protocol, which it did on January 31, 2019 (two days before the deadline!). Netflix now has multiple trademark applications for the term, both granted and pending.

The Air Force filed a U.S. “intent to use” trademark application  (serial no. 88338255) on March 13, 2019, nine months before the Space Force came into existence, and filed a second U.S. application (serial no. 88924951) on May 20, 2020. The Air Force’s applications include four of the same classes of goods and services as Netflix’s applications – basically, paper goods, clothing, toys, and TV/movies.

So, who gets to use the trademark?

Many countries use the “first to file” standard when determining who has priority use of a trademark. The U.S. has a “first use in commerce” standard. Under the “first use in commerce” standard, Netflix is in a pretty good position. Netflix announced the new series, hired a cast for the series, and began filming the series before the U.S. Space Force existed.

Often, businesses agree to limit the geographic area or other scope of their potentially-infringing trademarks, so that both parties can use the mark. In this situation, what will happen if both the U.S. Air Force and Netflix want to sell clothing, books, TV shows, and toys with the term “Space Force”? There may be a few Zoom meetings to iron this out.

In the meantime, good luck to General Raymond, Chief of Space Operations at the U.S. Space Force. And good luck to Steve Carell, who plays General Raymond’s fictional counterpart. Apparently General Raymond is a fan. Maybe they’ll sit down some day and have a Space Force beer. Because that’s the only U.S. trademark for “Space Force” that’s currently registered. 

— Joshua Waterston, Esq.