Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1197869
`
`Filing date:
`
`03/21/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Ex parte appeal
`no.
`
`87981611
`
`Appellant
`
`Thomas D. Foster, APC
`
`Applied for mark
`
`US SPACE FORCE
`
`Correspondence
`address
`
`Submission
`
`Attachments
`
`THOMAS D FOSTER
`TDFOSTER INTELLECTUAL PROPERTY LAW
`11622 EL CAMINO REAL SUIT 100
`SAN DIEGO, CA 92130
`UNITED STATES
`Primary email: foster@tdfoster.com
`858-922-2170
`
`Appeal brief
`
`6000.019-11 20220321 APPEAL BRIEF.pdf(181359 bytes )
`
`Appealed classes Class 006. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Metal license plates;
`Metal novelty license plates; Souvenir license plates of metal
`
`Class 012. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: License plate frames;
`License plate holders
`
`Class 014. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Collectible coins;
`Commemorative coins;Lapel pins; Ornamental lapel pins; Jewelry pins for use
`on hats; Jewelry; Watches; Clocks; Decorative key fobs of common metal; leath-
`er key chains
`
`Class 016. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Coloring Books;
`Posters; Greeting cards; Note cards; Postcards and greeting cards; Spiral-
`bound notebooks; Decals; Bumper stickers; Decorative stickers for helmets;
`Decals and stickers for use as home decor; Decorative decals for vehicle win-
`dows; Printed publications, namely, brochures, booklets, and teaching materials
`in the field of military history, tactics and doctrine; newsletters on the topic of mil-
`itary training, deployment, andlifestyle for active and inactive military personnel,
`military families, and friends; Address books; almanacs; appointment books; art
`prints; arts and craft paint kits; autograph books; baby books; baseball cards;
`binders; bookends; bookmarks; a series of fiction books; books, magazines,
`newsletters and periodicals, featuring stories, games and activities for children;
`calendars; cartoon strips; Christmas cards; chalk; children's activity books;
`coasters made of paper; coin albums; printed children's coloring pages; comic
`books; comic strips; coupon books; decorative paper centerpieces; diaries;
`drawing rulers; dry erase writing boards and writing surfaces; envelopes;
`erasers; flash cards; gift cards; gift wrapping paper; globes; guest books; gener-
`al feature magazines; maps; memo pads; modeling clay; newsletters and printed
`periodicals, featuring stories, games and activities for children; newspapers;
`notepaper; notebooks; notebook paper; paintings; paper flags; paper cake dec-
`orations; paper party decorations; paper napkins; paper party bags; paper-
`weights; papergift wrap bows; paper pennants; paper place mats; pen or pencil
`holders; pencilsharpeners; pen and pencil cases and boxes; photograph al-
`bums; photographs; photo-engravings; pictorial prints; picturebooks; plastic
`
`

`

`party goodie bags; plastic shopping bags; portraits; postcards; printed awards;
`printed certificates; printed invitations; printed menus; recipebooks; rubber
`stamps; score cards; stamp albums; stationery; staplers; stickers; sports trading
`cards; collectible trading cards; trading cards, other than forgames; ungraduated
`rulers; writing paper; writing implements; paper handkerchiefs
`
`Class 018. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Umbrellas; Beach
`bags; Book bags; Canvas shopping bags; Drawstring bags; Duffelbags; Gym
`bags; Reusable shopping bags;School bags; Sport bags; Tote bags; Wash bags
`sold empty for carrying toiletries; All-purpose carrying bags; all-purpose sports
`bags; baby backpacks; backpacks; calling card cases; coin purses; diaper bags;
`fanny packs; handbags; knapsacks; key cases; leather key chains; luggagetags;
`luggage; overnight bags; purses; satchels; shopping bags made of leather,mesh
`and textile; waist packs; wallets
`
`Class 020. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Accent pillows; Bed
`pillows; Floor pillows; Novelty pillows; Pillows; Picture and photograph frames;
`Picture frames; Wind chimes
`
`Class 021. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Mugs; Coffee mugs;
`Bottle openers; Buckets; Plastic cups; Shot glasses; Water bottles sold empty;
`Heat-insulated containers for household use; Non-electric portable beverage
`coolers; Thermal insulated containers for food or beverages; Utensils for barbe-
`cues, namely, forks, tongs, turners; Beer glasses; Beverage glassware; Bottle
`stoppers specially adapted for use with wine bottles; Coolers for wine; Cooling
`buckets for wine; Cups and mugs; Drinking flasks; Drinking glasses; Flasks;
`Glass beverageware; Glass mugs; Heat-insulated vessels; Hip flasks; Insulated
`flasks; Pilsner drinking glasses; Wine cooling pails; Wine glasses' Bakeware;
`beverageware; bowls; brooms; busts of ceramic, crystal, china, terra cotta,
`earthenware, porcelain and glass; cake pans; cake molds; candle holders not of
`precious metal; candle snuffers; candlesticks; canteens; coasters not of paper
`ortextile; cookie jars; cookie cutters; cork screws; cups; decorating bags for con-
`fectioners; decorative crystal prisms; decorative glass not for building; decorat-
`ive plates; dinnerware; dishware; dishes; figurines made of ceramic, china, crys-
`tal, earthenware, glass, and porcelain; Hair brushes; combs; household contain-
`ers for food and beverages; insulating sleeve holders for beverage containers;
`Non-electric tea kettles; lunch boxes; lunch kits comprising of lunch boxes and
`beverage containers; napkin holders; napkin rings not of precious metals; non-
`metallic trays for domestic purposes, namely, valet trays; serving trays; pie
`pans;pie servers; plates; non-electric portable coolers; removable insulated
`sleeve holders for drink cans and bottles; servingware for serving food; sports
`bottlessold empty; soap dishes; tea pots; tea sets; toothbrushes; trivets; vacuum
`bottles; waste baskets; drinking straws; barbecue mitts; oven mitts; pot holders;
`thermal insulated containers and bags for food or beverages
`
`Class 024. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Cloth flags; Fabric
`flags; Afghans; bath linen; bath towels; bed blankets; bed canopies; bed linen;
`bed sheets; bed skirts; bed spreads; blanket throws; calico; children's blankets;
`cloth coasters; cloth doilies; cloth pennants; comforters; crib bumpers; curtains;
`felt pennants;golf towels; hand towels; textile handkerchiefs; hooded towels;
`household linens; kitchen towels; pillow cases; pillow covers; plastic table cov-
`ers; quilts; receiving blankets; silk blankets; table linen; table napkins of textile;
`textile place mats; textile tablecloths; throws;towels; washcloths; woolen
`blankets
`
`Class 028. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Action figure toys;
`
`

`

`Collectable toy figures; Model toy vehicles; Modeled plastic toy figurines; Molded
`toy figures; Playing pieces in the nature of miniature action figures and toy mod-
`el vehicles foruse with table top hobby battle games in the nature of battle, war
`and skirmishgames, and fantasy games; Positionable toy figures; Toy action fig-
`ures and accessories therefor; Action target games; ;Toy spacecraft; Toy rock-
`ets; Toy space vehicles; Toy figures; Toy vehicles; Toyweapons; Scale model
`spacecraft; Scale model rockets; Scale model space vehicles; Christmas tree
`decorations; Christmastree ornaments; Action skill games; board games; chil-
`dren's multiple activity toys; badminton sets; balloons; basketballs; bath toys;
`baseball bats; baseballs;beach balls; bean bags; bean bag dolls;toy building
`blocks; bobblehead dolls; bowling balls; bubble making wand and solution sets;
`chess sets; toy imitation cosmetics; Christmas stockings; Christmastree orna-
`ments and decorations; crib mobiles; crib toys; disc toss toys; doll clothing;
`equipment sold as a unit for playing card games; fishing tackle; footballs; golf
`balls; golf gloves; golf ball markers; hand-held units for playing electronic games
`for use with or without anexternal display screen or monitor; hockey pucks;
`hockey sticks; infant toys; inflatable toys; jump ropes; kites; magictricks;
`marbles; manipulative games; music box toys; party favors in the natureof small
`toys; paper party hats; puppets; roller skates; role playing toys in the nature of
`play sets for children to imitate real life occupations; rubber balls; skateboards;
`snow boards; snow globes; soccer balls; spinning tops; table tennis balls; table
`tennis paddles and rackets; table tennis tables; target games;tennis balls; tennis
`rackets; toy bucket and shovel sets; toy mobiles; toy scooters; toy cars; toy
`banks; toy trucks; toy watches; toy building structures and toy vehicle tracks;
`video game machines for use with televisions; volley balls; wind-up toys; yo-yos;
`toy trains and parts and accessories therefor; toy aircraft; fitted plastic films
`known as skins for covering and protecting electronic game playing apparatus,
`namely, video gameconsoles, and hand-held video game units; Action figures
`and accessories therefor; card games; dolls; doll accessories;doll playsets; elec-
`tric action toys; jigsaw puzzles; mechanical toys; musical toys; parlor games; pa-
`per party favors; party games; playing cards; squeeze toys;talking toys; toy
`sabres; trading card games
`
`Class 034. First Use: None First Use In Commerce: None
`All goods and services in the class are appealed, namely: Lighters for smokers;
`Cigar lighters
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Thomas D. Foster
`
`foster@tdfoster.com
`
`/Thomas D. Foster/
`
`03/21/2022
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application of
`
`:
`
`Thomas D. Foster, APC
`
`Serial No.
`
`Filed
`
`Trademark
`
`Classes
`
`Trademark Attorney
`
`Law Office
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`87981611
`
`March 19, 2018
`
`US SPACE FORCE
`
`006, 012, 014, 016, 018, 020, 021, 024, 028, 034
`
`Tracy Cross
`
`109
`
`APPELLANT’S APPEAL BRIEF
`
`

`

`TABLE OF CONTENTS
`
` PAGE
`
`APPELLANT’S APPEAL BRIEF ................................................................................................... 1
`
`STATEMENT OF THE ISSUES ................................................................................................... 1
`
`ARGUMENT ................................................................................................................................. 2
`
`I.
`
`A.
`
`APPLICANT’S INTENDED USE OF THE “US SPACE FORCE” MARK DOES NOT
`FALSELY SUGGEST A CONNECTION WITH THE U.S. GOVERNMENT, FORMER
`PRESIDENT TRUMP, OR THE U.S. SPACE FORCE......................................................2
`
`The US Space Force Mark Is Not the Same As, or a Close Approximation Of, the Name
`or Identity Previously Used by the U.S. Government, Former President Trump, or the
`U.S. Space Force..................................................................................................................3
`
`1.
`
`The Articles and Evidence Put Forth by the Examining Attorney Fail to Show That
`on March 19, 2018 US Space Force Was a Name or Identity Used by the U.S.
`Government, Former President Trump, or the U.S. Space Force................................3
`
`B.
`
`The US Space Force Mark Does Not Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force .......................................8
`
`1.
`
`2.
`
`3.
`
`4.
`
`“US Space Force” Cannot Be Said to Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force since it Is
`Recognized as a Type of Collectable Space Related Toys Associated with the U.S.
`Television Series, Starcom: the U.S. Space Force...................................................8
`
`“US Space Force” Cannot Be Said to Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force since it Is Now
`Recognized as a Very Popular Television Series on Netflix ..................................9
`
`“US Space Force” Cannot Be Said to Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force since SPACE Force
`Is a Generic Term Which Refers to U.S. Based Civilian Entities Which Operate in
`Space......................................................................................................................11
`
`“US Space Force” Cannot Be Said to Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force since They Are
`Separate Entities ....................................................................................................15
`
`- i -
`
`

`

`5.
`
`6.
`
`“US Space Force” Cannot Be Said to Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force since The Examining
`Attorney Has Not Identified One Specific Entity or Persona to Which the Mark
`Points .....................................................................................................................15
`
`“US Space Force” Cannot Be Said to Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force since Survey
`Evidence Suggests that US SPACE FORCE Points Uniquely and Unmistakably in
`the Mind of the Public to a Number of Different Entities .....................................17
`
`II.
`
`15 U.S.C. §1052(A) FALSE SUGGESTION OF AN ASSOCIATION VIOLATES THE
`COMMON LAW AND THE CONSTITUTION...............................................................18
`
`III.
`
`CONCLUSION..................................................................................................................19
`
`- ii -
`
`

`

`TABLE OF AUTHORITIES
`
`CASES
`
` PAGE(S)
`
`Bridgestone/Firestone Research Inc. v. Auto. Club de l’Ouest de la France
`245 F.3d 1359, 58 USPQ2d 1460, 1463..............................................................................2
`
`Buffett v. Chi-Chi's, Inc.
`226 USPQ 428, 429 (TTAB 1985)....................................................................................3, 8
`
`Consolidated Natural Gas Co. v. CNG Fuel Systems, Ltd.
`228 USPQ 752 (TTAB 1985)...............................................................................................3
`
`Iancu v. Brunetti
`139 S. Ct. 2294 (2019).......................................................................................................18
`
`In re Pedersen
`109 USPQ2d 1185, 1188-89 (TTAB 2013).........................................................................3
`
`In re Shinnecock Smoke Shop
`571 F.3d 1171, 91 USPQ2d 1218 (Fed. Cir. 2009)..............................................................2
`
`In re Wielinski
`49 U.S.P.Q.2d 1754, 1758, 1998 WL 998961 (T.T.A.B. 1998)........................................16
`
`In re WNBA Enterprises, LLC
`70 U.S.P.Q.2d 1153, 2003 WL 21371590 (T.T.A.B. 2003)...............................................16
`
`Matal v. Tam
`137 S. Ct. 1744 (2017).......................................................................................................18
`
`Nike Inc. v. Maher
`100 USPQ2d 1018 (TTAB 2011)........................................................................................7
`
`National Aeronautics and Space Administration v. Bully Hill Vineyards Inc.
`3 USPQ2d 1671, 1676 (TTAB 1987).............................................................................7, 14
`
`University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co. Inc.
`703 F.2d 1372, 217 USPQ 505 (Fed.Cir.1983)................................................................3, 8
`
`STATUTES
`
`Trademark Act, 15 U.S.C. §1052(a) ......................................................................................passim
`
`CONSTITUTION
`United States Constitution, Article I, Section 8, Clause 8 .............................................................18
`
`- iii -
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application of
`
`:
`
`Thomas D. Foster, APC
`
`Serial No.
`
`Filed
`
`Trademark
`
`Classes
`
`Trademark Attorney
`
`Law Office
`
`:
`
`:
`
`:
`
`:
`
`:
`
`:
`
`United States Patent and Trademark Office
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria,VA 22313-1451
`
`87981611
`
`March 19, 2018
`
`US SPACE FORCE
`
`006, 012, 014, 016, 018, 020, 021, 024, 028, 034
`
`Tracy Cross
`
`109
`
`APPELLANT’S APPEAL BRIEF
`
`Applicant, Thomas D. Foster, APC, (“TDFoster”) hereby appeals from the refusal to register
`
`the mark US SPACE FORCE for a wide range of goods in Classes 006, 012, 014, 016, 018, 020,
`
`021, 024, 028, and 034 and respectfully requests the Board to reverse the Examining Attorney’s
`
`decision.
`
`STATEMENT OF THE ISSUES
`
`TDFoster intends to offer goods and services under its US SPACE FORCE mark
`
`which will pay homage to the 1987 animated syndicated U.S. television series, Starcom: The
`
`U.S. Space Force, which was inspired by a motorized toy franchise manufactured by Coleco.
`
`(See March 20, 2019 Response at page 6 and Exhibit H attached thereto). The present intent-to-
`
`use application to register the mark US SPACE FORCE was filed on March 19, 2018 and the
`
`present appeal was filed on January 5, 2022.
`
`Registration was finally refused on the following one ground: false suggestion of
`
`connection with the U.S. Government, former President Trump, or the U.S. Space Force. (see
`
`January 28, 2022 Reconsideration Letter at page 2, and July 6, 2021 Final Office Action at page
`
`7), pursuant to §2(a) of the Trademark Act, 15 U.S.C. §1052(a).
`
`1
`
`

`

`The refusal to register should be reversed for the following reasons:
`
`1.
`
`The US SPACE FORCE mark does not falsely or otherwise suggest a connection
`
`with the U.S. Government, former President Trump, or the U.S. Space Force – particularly
`
`given that (A) the US SPACE FORCE mark is not the same as, or a close approximation of, the
`
`name or identity previously used by the U.S. Government, former President Trump, or the U.S.
`
`Space Force, and (B) the US SPACE FORCE mark does not point uniquely and unmistakably to
`
`the U.S. Government, former President Trump, or the U.S. Space Force.
`
`2.
`
`15 U.S.C. §1052(a) false suggestion of an association violates Common Law and
`
`is unconstitutional since it gives special benefits for an unlimited time to the elite or famous or
`
`powerful in our society and, as such, it grants a monopoly that is in direct contradiction to the
`
`equal protection of the laws.
`
`ARGUMENT
`
`I.
`
`APPLICANT’S INTENDED USE OF THE “US SPACE FORCE” MARK DOES
`NOT FALSELY SUGGEST A CONNECTION WITH THE U.S. GOVERNMENT,
`FORMER PRESIDENT TRUMP, OR THE U.S. SPACE FORCE.
`
`Section 2(a) of the Act prohibits registration on either the Principal or the Supplemental
`
`Register of a designation that consists of or comprises matter that may falsely suggest a
`
`connection with “persons, living or dead, institutions, beliefs, or national symbols ....” 15 U.S.C.
`
`§ 1052(a). “[T]he rights protected under the § 2(a) false suggestion provision are not designed
`
`primarily to protect the public, but to protect persons and institutions from exploitation of their
`
`persona.” Bridgestone/Firestone Research Inc. v. Auto. Club de l’Ouest de la France, 245 F.3d
`
`1359, 58 USPQ2d 1460, 1463 (Fed. Cir. 2001). A person, institution, belief or national symbol
`
`does not need to be explicitly protected by statute in order to be protected under Section 2(a).
`
`See, e.g., In re Shinnecock Smoke Shop, 571 F.3d 1171, 91 USPQ2d 1218 (Fed. Cir. 2009).
`
`To establish that a proposed mark falsely suggests a connection with a person or an
`
`institution, it must be shown that:
`
`The mark is the same as, or a close approximation of, the name or identity
`(1)
`previously used by another person or institution;
`
`The mark would be recognized as such, in that it points uniquely and
`(2)
`unmistakably to that person or institution;
`
`2
`
`

`

`The person or institution named by the mark is not connected with the
`(3)
`activities performed by the applicant under the mark; and
`
`The fame or reputation of the person or institution is such that, when the
`(4)
`mark is used with the applicant’s goods or services, a connection with the person
`or institution would be presumed.
`
`Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 217 USPQ 508-09 (“the
`
`Univ. of Notre-Dame du Lac test”). See also In re Pedersen, 109 USPQ2d 1185, 1188-89 (TTAB
`
`2013) (citing Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imports Co. in an ex parte
`
`appeal context for “providing foundational principles for the current four-part test used by the
`
`Board to determine the existence of a false connection”).
`
`A.
`
`The US Space Force Mark Is Not the Same As, or a Close Approximation Of, the
`Name or Identity Previously Used by the U.S. Government, Former President
`Trump, or the U.S. Space Force.
`
`To support a Section 2(a) refusal that a mark "falsely suggests a connection" with another
`
`person (including a corporation or an institution), it must be shown that the applicant's mark is
`
`the same as or a close approximation of a previously used name or identity of that other person;
`
`that the mark would be recognized as such (i.e., that the mark points uniquely and unmistakably
`
`to that person); that there is no connection between the person named by the mark and the
`
`activities performed by the applicant under the mark; and, that the person's name is of sufficient
`
`fame or reputation that a connection with such person would be presumed when the applicant's
`
`mark is used on its goods or services. See Buffett v. Chi-Chi's, Inc., 226 USPQ 428 (TTAB 1985)
`
`and Consolidated Natural Gas Co. v. CNG Fuel Systems, Ltd., 228 USPQ 752 (TTAB 1985).
`
`1.
`
`The Articles and Evidence Put Forth by the Examining Attorney Fail to
`Show That on March 19, 2018 US Space Force Was a Name or Identity Used
`by the U.S. Government, Former President Trump, or the U.S. Space Force.
`
`The Examining Attorney, to support their assertion that Applicant’s US SPACE FORCE
`
`mark is the same as, or a close approximation of the U.S. Government and its military, points to
`
`a number of online articles and websites. There is a glaring problem with the references
`
`published before applicant’s filing date - they all refer to a then non-existent entity.
`
`3
`
`

`

`The legislative provisions of the 2020 National Defense Authorization Act for the
`
`creation of the Space Force, were only signed into law by President Donald Trump during a
`
`signing ceremony at Joint Base Andrews on December 20, 2019. The present application was
`
`filed on March 19, 2018 - almost two years two years prior to the creation of this new military
`
`branch.
`
`The following article, which is found in the November 18, 2019 Final Office Action at
`
`pages 8 and 77-86, delves into the history of the U.S. Space Force.
`
`The U.S. Space Force is organized differently than a MajCom; it is one of the
`Combatant Commands operated by the Department of Defense and operates
`alongside United States European Command, Special Operations Command, and
`Cyber Command.
`https://militarybenefits.info/space-force/#ixzz65aPQP8aa
`
`
`
`Therein, the author provides the following insight into the creation of the U.S. Space
`
`Force (“USSF”).
`
`USSF made history when it was officially made the sixth branch of the United
`States military. Created on Dec. 20, 2019 with the enactment of the FY 2020
`National Defense Authorization Act (NDAA), USSF was established within the
`Department of the Air Force. (Emphasis added).
`
`The United States Space Force is not a brand-new concept. It was actually
`established as a functioning entity in 1985, but did not survive the merger with
`United States Strategic Command (STRATCOM) following 9/11.
`
`On Aug. 9, 2018, the Vice President announced that the Department of Defense
`has been tasked to create a sixth branch, the U.S. Department of the Space Force,
`by the year 2020. Plans were also announced to establish a new combatant
`command — U.S. Space Command — as well as a Space Operations Force and a
`new joint organization called the Space Development Agency.
`
`On Tuesday, Feb. 19, 2019, the President signed Space Policy Directive Four; a
`measure taken to establish the United States Space Force; something the president
`had announced in August of 2018.
`
`In 2020, Air Force Space Command was redesignated as U.S. Space Force via the
`2020 National Defense Authorization Act. All of the former Air Force Space
`
`4
`
`

`

`Command experienced a reorganization and reassignment to accommodate the
`new agency, which made its first launch into space via an Atlas V rocket.
`
`The following article, which is found in the November 18, 2019 Final Office Action at
`
`pages 8 and 151-160, provides further insight into the origins of the U.S. Space Force.
`
`With Congressional Blessing, Space Force Is Closer To Launch
`https://www.npr.org/2019/08/11/743612373/with-congressional-blessing-space-force-is-closer-t
`o-launch
`
`Therein, it explains former President Trumps’ early thoughts on the creation of a new
`
`military branch:
`
`It started as a joke.
`
`Early last year, President Trump riffed on an idea he called "Space Force" before
`a crowd of Marines in San Diego.
`
`It drew laughs, but the moment was a breakthrough for a plan that had languished
`for nearly 20 years.
`
`"I said maybe we need a new force, we'll call it the Space Force," Trump said at
`Marine Corps Air Station Miramar in March 2018. "And I was not really serious.
`Then I said, 'What a great idea, maybe we'll have to do that.'"
`
`But now, under a new name and with Congress' support, Space Force is closer to
`becoming a new military reality. It would be the first new military service in more
`than 70 years.
`
`The Wikipedia article regarding the United States Space Force, found in the November
`
`18, 2019 Final Office Action at pages 118-126, states the following:
`
`The United States Space Force (USSF) is the proposed space warfare service
`branch of the United States Armed Forces. It would be the sixth branch of the
`United States Armed Forces and the eighth U.S. uniformed service.
`
`Only the following two articles, cited by the Examining Attorney were published prior to
`
`March 19, 2018.
`
`5
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`

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`https://www.theatlantic.com/science/archive/2018/03/trump-space-force-nasa/555560/
`See November 18, 2019 Final Office Action at pages 10 and 127
`
`https://www.vox.com/world/2017/7/5/15905018/space-force-trump-congress-russia-china. See
`November 18, 2019 Final Office Action at pages 10 and 161-169
`
`There is no indication how many people saw these two articles prior to March 19, 2018
`
`(applicant’s filing date) plus these two online articles appear to target specific audiences, such as
`
`those interested in military or defense news, space technology, rather than the general public.
`
`The following are the articles cited by the Examining Attorney to support their position
`
`that the U.S. Space Force is the same as, or a close approximation of the U.S. Government,
`
`Former President Trump, or the U.S. Space Force. Note that they were published in 2019 which
`
`should eliminate them from being valid evidence of the extent of the public’s awareness, prior to
`
`March 19, 2018, of the joke made by then President Trump about his idea for a Space Force.
`
`https://www.defensenews.com/digital-show-dailies/2019/09/16/documents-reveal-how-the-space
`-force-would-launch-in-90-days/
`Published 9/16/2019 - See November 18, 2019 Final Office Action at pages 8 and 27-36
`
`https://spacenews.com/dod-working-on-space-force-rollout-plan-pending-congressional-approva
`l/
`Published 10/27/2019 - See November 18, 2019 Final Office Action at pages 8 and 37-45
`
`https://www.csis.org/analysis/space-force-or-space-corpshttps://www.csis.org/analysis/space-for
`ce-or-space-corps
`Published 6/27/2019 - See November 18, 2019 Final Office Action at pages 8 and 59-67
`
`https://www.foxbusiness.com/markets/us-space-command-launch-trump
`Published 8/29/2019 - See November 18, 2019 Final Office Action at pages 8 and 68-72
`
`https://militarybenefits.info/space-force/#ixzz65aPQP8aa
`Published 2019 - See November 18, 2019 Final Office Action at pages 8 and 77-86
`
`https://www.taxpayer.net/national-security/factsheet-space-force/
`Published 11/7/2019 - See November 18, 2019 Final Office Action at pages 8 and 87-91
`
`https://www.geekwire.com/2019/trump-ushers-u-s-space-command-space-force-corps-waiting-w
`ings/
`
`6
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`

`

`Published 8/29/2019 - See November 18, 2019 Final Office Action at pages 8 and 94-102
`
`https://www.foxnews.com/science/space-command-trump-space-force
`Published 8/21/2019 - See November 18, 2019 Final Office Action at pages 8 and 103-108
`https://www.npr.org/2019/08/11/743612373/with-congressional-blessing-space-force-is-closer-t
`o-launch
`Published 8/11/2019 - See November 18, 2019 Final Office Action at pages 8 and 151-160
`
`These articles fail to show that the authors perceive, or refer to former President Trump
`
`as US SPACE FORCE or anything of the sort as of March 19, 2018 or the amount of public
`
`exposure there was to the term prior to that date. See Nike Inc. v. Maher, 100 USPQ2d 1018,
`
`1024 n.12 (TTAB 2011) (“The probative value of the news articles is that they show how the
`
`authors perceive, or refer to, opposer, and the exposure of the public to Opposer’s name.”). (See
`
`March 20, 2019 Response, pages 3-4).
`
`All that the two articles which were published before March 19, 2018 show is that
`
`President Trump had flippantly stated a desire for a new branch of the military to be formed
`
`which he called a space force. While it appeared that he had a “magic wand” when it came to
`
`the economy, he did not have a magic wand with which to instantly create such a military branch
`
`out of thin air. In fact Congress had yet to establish any such branch of the military. Since this
`
`branch of the military did not yet exist, it is illogical to say that an institution or person was
`
`named in the applied-for mark.
`
`Thus, neither the U.S. Government, former President Trump, or the U.S. Space Force
`
`were able to assert rights to the US SPACE FORCE mark at the time that the present application
`
`was filed. There was no legally recognized branch of the U.S. military designated the U.S.
`
`Space Force at that time.
`
`The articles and evidence relied upon by the Examining Attorney fail to show that US
`
`SPACE FORCE is either a previously used name or identity of the U.S. Government, former
`
`President Trump, or the U.S. Space Force or a close approximation of their name or identity,
`
`thus the Examining Attorney has failed to prove the first prong of the test.
`
`///
`
`7
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`

`

`B.
`
`The US Space Force Mark Does Not Point Uniquely and Unmistakably to the U.S.
`Government, Former President Trump, or the U.S. Space Force
`
`In National Aeronautics and Space Administration v. Bully Hill Vineyards Inc., 3
`
`USPQ2d 1671, 1676 (TTAB 1987), the Board explained the derivation and purpose of the false
`
`suggestion of a connection claim under Section 2(a) stating that the “Lanham Act claim [false
`
`suggestion of a connection] evolved out of the concepts of the rights of privacy and publicity,
`
`protecting an individual's control over the use of his "identity" or "persona." University of Notre
`
`Dame du Lac v. J.C. Gourmet Food Imports Co. Inc., 703 F.2d 1372, 217 USPQ 505
`
`(Fed.Cir.1983). While a party's interest in its identity does not depend for its existence on the
`
`adoption of and use of a technical trademark, a party must nevertheless have a protectible
`
`interest in a name (or its equivalent). Where a name claimed to be appropriated does not point
`
`uniquely and unmistakably to that party's personality or "persona," there can be no false
`
`suggestion. Buffett v. Chi-Chi's, Inc., 226 USPQ 428, 429 (TTAB 1985).
`
`1.
`
`“US Space Force” Cannot Be Said to Point Uniquely and Unmistakably to
`the U.S. Government, Former President Trump, or the U.S. Space Force
`since it Is Recognized as a Type of Collectable Space Related Toys Associated
`with the U.S. Television Series, Starcom: the U.S. Space Force
`
`As mentioned above, Applicant intends to offer goods and services under its US SPACE
`
`FORCE mark which will pay homage to the 1987 animated syndicated U.S. television series,
`
`Starcom: The U.S. Space Force, which was inspired by a motorized toy franchise manufactured
`
`by Coleco. Applicant respectfully asks the Board to review the Wikipedia article about this
`
`series. (See January 24, 2020 Request for Reconsideration Exhibit D).
`
`The public’s continuing fami