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Last week, the U.S. Court of Appeals for the Federal Circuit issued an opinion in <a href="https://www.cafc.uscourts.gov/opinions-orders/23-1527.OPINION.5-7-2025_2510558.pdf"><em>In re: Thomas D. Foster, APC</em>, No. 2023-1527 (May 7, 2025)</a>, affirming the decision of the Trademark Trial and Appeal Board (the “Board”) affirming the examiner’s refusal to register the mark US SPACE FORCE.

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Following a March 13, 2018 speech by President Trump proposing the formation of a military branch called the Space Force, Thomas D. Foster filed an application to register the mark US SPACE FORCE under Section 1(b) of the Lanham Act. The examining attorney refused registration under Section 2&nbsp; of the Lanham Act based on a false suggestion of a connection with the United States. The Board affirmed the refusal and denied Foster’s request for reconsideration. Foster appealed.

The Federal Circuit affirmed. In its opinion, the Court first clarified the proper temporal framework for evaluating an alleged false suggestion of a connection. The key issue was whether the analysis must be limited to facts existing on the application’s filing date, or whether subsequent developments may be considered. Reaffirming its earlier precedents, the Court noted that when a mark is ultimately registered, the inquiry centers on the facts as they existed at the time of registration. When, however, a mark never registers—as in this case—the relevant reference point is the examination period. Drawing on guidance from its predecessor tribunal, the Court held that “the false-connection inquiry may encompass evidence that arises during the examination process.” Because Foster failed to show that the Board relied on evidence that post-dated the close of that examination period, his challenge was unpersuasive.

Next, the Court addressed the four-factor test applied by the Board in determining a false connection. After noting that the four factors analyzed by the Board were not exhaustive, the Court held that the Board had properly found that Foster’s US SPACE FORCE trademark was the same as or a close approximation of a name or identity of the United States based on substantial evidence. Similarly, the Court held that that Board’s finding that US SPACE FORCE pointed uniquely and unmistakably to the United States was supported by substantial evidence.

CAFC Affirms TTAB’s Refusal to Register the Trademark US SPACE FORCE

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