The Netflix series “Space Force” has been handily winning the race to secure trademarks for the “Space Force” title against the Trump Administration’s newly created branch of the United States military. Netflix has obtained trademarks in Mexico, Australia, Europe, and other countries. The U.S. government, on the other hand, has not even secured a trademark in the United States. As of this moment, the potential for confusion and conflict is minimal. However, the possibility of the selling of Space Force merchandise may set up a legal conflict.
The possibility of confusion between the series and the military division seems minimal. As has been noted, people are not likely to show up at a Space Force military branch expecting to meet Steve Carrell. However, what would happen if Netflix would like to sell space force uniforms with the official military insignia to promote the series? Would the U.S. government have any grounds to prevent such commercial activity?
The answer lies, at least in American law, in who used the Space Force title first. As the U.S. Patent and Trademark Office notes: “Common law rights may be stronger… if the common law use is earlier than the use that supports the registration.” Netflix announced the ordering of the series on January 16th, 2019 while President Trump only signed the National Defense Authorization Act, which added the Space Force to the U.S. military, on December 20th, 2019. Based on this, it would seem clear that Netflix used the mark first. Of course, one could say that the idea of the Space Force was used by the federal government when it was mentioned by the President approximately 10 months prior to Netflix’s ordering of the series. However, such an argument may fail given that the U.S. Supreme Court has recently held that statements by politicians are not necessarily pertinent to deciding the merits of a case. On the basis of the timeline, it would surely seem that Netflix would win a hypothetical legal battle with the Trump Administration. Moreover, the use by the Trump Administration is not a commercial use and hence may be irrelevant to deciding who can register the mark, as per the Trademark Manual of Examining Procedure.
Not only would this seemingly be the right legal decision, but it would also be a win for creativity and expression. A hypothetical victory for the federal government could easily have a chilling effect on creativity and commercial activity. Many businesses may not have the money to both apply for a trademark and also hire a lawyer to aid in navigating such a process and hence require the common law trademark right absent federal registration. A decision upholding such a view would surely continue to strengthen expression and ingenuity.
A Netflix victory would undoubtedly rattle the Trump Administration, its closest allies, and the President himself. Of course, one need only look to the President’s threats against Saturday Night Live for their parodies of him. This already engrained distaste of parodies coupled with specific parodies of a branch of the U.S. military which he embraces wholeheartedly will surely attract his ire. A Netflix victory may reasonably cause substantive retribution, such as a rethinking of Section 1 of the Sherman Anti-Trust Act and its relation to awards shows. Once again, given the President’s attempts to unilaterally punish Twitter for flagging his tweets, is such retribution unthinkable? Such reaction, if enacted and valid, could punish not only Netflix, but many companies who may get caught in the crossfire.
The U.S. Supreme Court held in Campbell v. Acuff Rose Music that parodical work can be argued to be a fair use under the Copyright Act. Much of the decision easily applies to trademarks as well and I believe would be important to a hypothetical lawsuit. While there is no fair use provision in the United States Trademark Act, a defense of fair use in trademark cases has been established, with a 2004 Supreme Court decision, KP Permanent Makeup v. Lasting Impression, acknowledging its existence. Arguing that Netflix should be allowed to sell, for example, uniforms of the Space Force that closely mirror the actual military uniforms and brandish the exact same or confusingly similar insignia on the basis that the show is parodical or satirical is a stretch to be covered under the fair use defense of trademark infringement, as affirmed in Permanent Makeup. Indeed, such an argument would work if the only question was whether Netflix could air the show, as the show itself is clearly a parody or satire. However, I do not believe it to be the case that such aforementioned merchandise is itself parodical or satiric nor closely connected to parody. The argument resting on parody and satire may work, in line with Campbell, in only certain cases whereas the common law argument will surely result in the broad and correct decision, a Netflix victory.
The Trump Administration has not as of yet signalled any conflict over the Netflix series. However, it is easy to see how this type of hypothetical issue may play out. If it were to happen, a win from Netflix would be beneficial to creativity and provide a net benefit, even given the legitimate risks.
Written by Nicholas Heinrich. Nicholas is an undergraduate student at the University of Toronto studying Political Science and Economics.