[00:00:00] Speaker 05:
Our final case for argument today is 23-1527, Inray Foster.

[00:00:07] Speaker 00:
Good morning.

[00:00:07] Speaker 00:
If it may please the court, I'm Thomas D. Foster.

[00:00:10] Speaker 00:
I represent the appellant here, Thomas D. Foster, APC.

[00:00:15] Speaker 00:
Thomas D. Foster, the appellant, is actively involved in content creation for educational and entertainment purposes.

[00:00:24] Speaker 00:
For example, georgemagazine.com and starfleetspaceacademy.com.

[00:00:30] Speaker 00:
And this is part of the important trademark that they're seeking.

[00:00:36] Speaker 00:
seeking trademark for US Space Force for a broad range of consumer goods.

[00:00:42] Speaker 00:
And these are important to acquire.

[00:00:44] Speaker 05:
Okay, well, I mean, that's all great.

[00:00:46] Speaker 05:
But why is the office wrong in having concluded that your trademark falsely suggests a connection with a person or an institution, in this case, that being the United States?

[00:01:01] Speaker 00:
I can answer that.

[00:01:04] Speaker 00:
I note that the Trademark Office had difficulty identifying one single person throughout their different office actions.

[00:01:10] Speaker 00:
First it was President Trump and the United States government, then they added the military, and then it came down finally to the United States government and its military, the U.S.

[00:01:20] Speaker 00:
Space Force, which was created two years later in 2019 after the application was filed.

[00:01:28] Speaker 00:
You know, I'll also say there's a similar instance where trademarks have been granted for government agencies.

[00:01:36] Speaker 00:
I give an example, Top Gun, which was surprisingly at the same place where President Trump announced his desire for a space force, which was maybe taken as a joke by the public.

[00:01:48] Speaker 00:
But there, the Top Gun Paramount Pictures was able to obtain 12 trademark registrations for similar goods.

[00:01:57] Speaker 00:
There's a distinct understanding in the public that there's a difference between a fictional law enforcement or entity like that entertainment show and the actual US military.

[00:02:11] Speaker 00:
So I posit there that the public.

[00:02:13] Speaker 02:
It's a highly factual question.

[00:02:14] Speaker 00:
Yes.

[00:02:15] Speaker 02:
Right?

[00:02:16] Speaker 00:
Yeah.

[00:02:18] Speaker 00:
And I think it's borne out by the survey that was submitted with the appeal brief.

[00:02:23] Speaker 00:
that show that the public doesn't point to one particular entity, NASA, Trump, US government.

[00:02:32] Speaker 02:
But didn't the board found a couple problems with the survey?

[00:02:37] Speaker 02:
First, the board wasn't sure about the methodology.

[00:02:40] Speaker 02:
It was not explained.

[00:02:41] Speaker 02:
So it wasn't sure that it was a reliable survey.

[00:02:44] Speaker 02:
And then second, if I remember correctly, the board

[00:02:48] Speaker 02:
I think somewhat reasonably said, at least three of those answers all pointed to the same thing, which is the US government.

[00:02:57] Speaker 02:
And that was 2 thirds of the respondents identified one of those three things that would have pointed to the US government.

[00:03:05] Speaker 02:
So that seemed pretty reasonable.

[00:03:07] Speaker 00:
Yeah, and I would look at the law that requires it.

[00:03:10] Speaker 02:
Do you think the board's finding was reasonable there?

[00:03:13] Speaker 00:
Well, I would say that we need to go back and look at the law, possibly, because under our new Supreme Court decision with Loper-Bright, we're supposed to be going back and see if the law, you know.

[00:03:26] Speaker 02:
But that's different.

[00:03:27] Speaker 02:
That's not a statutory interpretation.

[00:03:30] Speaker 00:
Well, the statutory interpretation is you're asking about the survey.

[00:03:34] Speaker 00:
Was it a valid survey?

[00:03:36] Speaker 00:
Did the board rely upon it correctly?

[00:03:39] Speaker 00:
And I would say for an appellant,

[00:03:41] Speaker 00:
you know, applicant at the trademark office, they're not going to spend tens of thousands, maybe $20,000.

[00:03:48] Speaker 05:
But forget about the reliability.

[00:03:49] Speaker 05:
I think that Judge Stoll's other point was that the agency found as a factual matter that 65 or so percent of all the respondents still identified

[00:04:02] Speaker 05:
this U.S.

[00:04:03] Speaker 05:
Space Force with the United States in one way, shape, or form.

[00:04:07] Speaker 05:
So how is it that that isn't enough?

[00:04:10] Speaker 05:
Are you saying, is your argument that 65% of people who think the trademark's affiliated with the U.S.

[00:04:16] Speaker 05:
government isn't a high enough number?

[00:04:18] Speaker 05:
What is your problem at that point?

[00:04:21] Speaker 00:
Well, let's sort of step back again, looking at what happened in Top Gun.

[00:04:25] Speaker 00:
You know, you could have said that there had been a survey, and did Top Gun refer to the naval training for... It's so different.

[00:04:32] Speaker 02:
I mean, you can't.

[00:04:33] Speaker 02:
I'm sorry.

[00:04:34] Speaker 02:
It's a different factual scenario.

[00:04:38] Speaker 02:
And the factual scenario we have here involves the U.S.

[00:04:42] Speaker 02:
Space Force.

[00:04:44] Speaker 00:
Right.

[00:04:44] Speaker 02:
I just see a difference for factually.

[00:04:47] Speaker 02:
So I'm not sure that referring to another case where there wasn't

[00:04:52] Speaker 02:
where the statute was found not to be satisfied.

[00:04:54] Speaker 02:
There was no falsely suggesting that.

[00:04:57] Speaker 00:
Yeah, the circumstances surrounding it, yes.

[00:04:59] Speaker 02:
I mean, I don't even know if there was a case about that.

[00:05:01] Speaker 00:
No, I don't think so, because they were able to get there.

[00:05:03] Speaker 02:
So it's really not very helpful, to be honest.

[00:05:05] Speaker 00:
Well, it's indicative that trademarks can be identical to US government agencies or entities and still be able to coexist without creating this kind of issue.

[00:05:15] Speaker 02:
But the question here is whether

[00:05:17] Speaker 02:
U.S.

[00:05:17] Speaker 02:
Space Force, whether the board's decision that U.S.

[00:05:20] Speaker 02:
Space Force falsely suggests a connection with U.S.

[00:05:23] Speaker 02:
government military force, whether that's supported by substantial evidence, right?

[00:05:28] Speaker 00:
Right.

[00:05:30] Speaker 00:
And if you're relying upon this survey that I think believes, shows that it shows different, people aren't really clear in what NASA, you know, agency,

[00:05:42] Speaker 00:
US military, the government in whole.

[00:05:45] Speaker 00:
It's not like it points specifically to President Trump, which was originally claimed by the examining attorney.

[00:05:53] Speaker 00:
So we're working at these three different entities.

[00:05:57] Speaker 00:
You know, President Trump, the US government, now who?

[00:05:59] Speaker 02:
So your view is that it was unreasonable for the board to view those as being similar enough to show that there was a false connection.

[00:06:08] Speaker 00:
Right.

[00:06:08] Speaker 00:
It's not pointing to one particular person.

[00:06:10] Speaker 00:
Take, for instance, President Trump.

[00:06:13] Speaker 00:
Since he left, he's certainly now back going to be president again.

[00:06:17] Speaker 00:
But once he leaves again, will he be known as Space Force?

[00:06:19] Speaker 00:
Will he have that entity ascribed to him?

[00:06:22] Speaker 00:
that Monica described him.

[00:06:24] Speaker 00:
I don't believe so.

[00:06:31] Speaker 00:
That's what the law is supposed to do.

[00:06:33] Speaker 00:
It's supposed to protect the public against being shocked and dismayed by this connections.

[00:06:40] Speaker 00:
As you go back and read.

[00:06:41] Speaker 05:
Who's being shocked and dismayed?

[00:06:43] Speaker 05:
No.

[00:06:43] Speaker 05:
They're supposed to prevent deception, among other things.

[00:06:49] Speaker 05:
And so the idea is, if you pass off goods,

[00:06:53] Speaker 05:
with the trademark U.S.

[00:06:55] Speaker 05:
Space Force, is that going to confuse the purchaser into believing that those goods have an affiliation with somebody other than your client in particular?

[00:07:06] Speaker 00:
This is assuming that the government got the rights to the trademark, despite President Trump speaking at this event?

[00:07:11] Speaker 00:
No, no, this doesn't require trademarks.

[00:07:12] Speaker 00:
No, no, no.

[00:07:12] Speaker 00:
No, no, no.

[00:07:12] Speaker 00:
No, no, no.

[00:07:13] Speaker 00:
No, no, no.

[00:07:13] Speaker 00:
No, no, no.

[00:07:13] Speaker 00:
No, no, no.

[00:07:13] Speaker 05:
No, no, no.

[00:07:14] Speaker 05:
No, no, no.

[00:07:14] Speaker 00:
No, no, no.

[00:07:14] Speaker 05:
No, no, no.

[00:07:14] Speaker 05:
No, no, no.

[00:07:15] Speaker 05:
No, no, no.

[00:07:15] Speaker 05:
No, no, no.

[00:07:15] Speaker 05:
No, no, no.

[00:07:15] Speaker 05:
No, no, no.

[00:07:16] Speaker 05:
No, no, no.

[00:07:16] Speaker 00:
No, no, no.

[00:07:16] Speaker 00:
No, no, no.

[00:07:16] Speaker 00:
No, no, no.

[00:07:17] Speaker 05:
No, no, no.

[00:07:17] Speaker 05:
No, no, no.

[00:07:17] Speaker 05:
No, no, no.

[00:07:17] Speaker 05:
No, no, no.

[00:07:18] Speaker 00:
No, no, no.

[00:07:18] Speaker 00:
No, no, no.

[00:07:18] Speaker 00:
No, no, no

[00:07:19] Speaker 00:
an entity at that point.

[00:07:20] Speaker 00:
It became real.

[00:07:22] Speaker 00:
It was a nascent idea at his time.

[00:07:25] Speaker 00:
Some people took it as a joke.

[00:07:27] Speaker 00:
And six days later,

[00:07:29] Speaker 00:
Yeah.

[00:07:31] Speaker 05:
I don't think it has to be real.

[00:07:32] Speaker 05:
I think that we're having a fundamental misunderstanding.

[00:07:34] Speaker 05:
Let me give you an example.

[00:07:36] Speaker 05:
Um, we all know that president Trump has golf courses.

[00:07:38] Speaker 05:
We don't all know that, but I think I know that president Trump has golf courses, right?

[00:07:42] Speaker 05:
Trump golf courses, whatever they're called.

[00:07:45] Speaker 05:
Um, I don't believe I could be wrong, but I don't believe president Trump has any tennis facilities, but if somebody tried to trademark Trump tennis facility, that's his name.

[00:07:58] Speaker 05:
I think that the public would think that this is a facility owned by Trump.

[00:08:03] Speaker 05:
So it doesn't matter that there doesn't exist a Trump tennis facility.

[00:08:08] Speaker 05:
All that matters in the false association language is will consumers be confused because they would think that is something else.

[00:08:19] Speaker 00:
And I'll address that in two different ways.

[00:08:21] Speaker 00:
At the time the appellant applied, it gained tentative nationwide rights to the mark.

[00:08:28] Speaker 00:
At that time, there was no US Space Force.

[00:08:31] Speaker 00:
It was an idea.

[00:08:32] Speaker 00:
There had been ideas about a space force and a space corps, but nobody had created this new government entity.

[00:08:39] Speaker 00:
In fact, it wasn't until 2019 that Congress authorized it.

[00:08:46] Speaker 00:
So it really, you know, President Trump was pointing to this future dream, this idea, and some people took it as a joke at that time.

[00:08:54] Speaker 00:
Whether it would have ever come into existence is sort of the question.

[00:08:58] Speaker 02:
Where does the statute say?

[00:09:00] Speaker 02:
It really just says you can't have a trademark that falsely suggests a connection with institutions.

[00:09:07] Speaker 02:
Where does it say anything about at the time of the filing or anything like that?

[00:09:13] Speaker 02:
It doesn't say that.

[00:09:16] Speaker 00:
I recall that there was a case involving use.

[00:09:23] Speaker 00:
I'm trying to see if I can find it here.

[00:09:27] Speaker 05:
I think that – let me just help.

[00:09:29] Speaker 05:
I think – so the statute says no trademark shall be refused registration on account of it unless it – so we have to tether it to at the time of registration.

[00:09:41] Speaker 05:
But at the time of registration, the question is, it seems to me, would people think the U.S.

[00:09:48] Speaker 05:
Space Force is connected with the U.S.

[00:09:51] Speaker 05:
government?

[00:09:52] Speaker 00:
And I'm here to assuage you that it will not be used in that fashion.

[00:09:57] Speaker 05:
Well, in fact, there's still a remedy.

[00:10:03] Speaker 00:
After registration, the U.S.

[00:10:06] Speaker 00:
government can challenge it upon the same basis.

[00:10:09] Speaker 00:
False suggestion of a connection.

[00:10:11] Speaker 00:
And that goes on into the future.

[00:10:13] Speaker 04:
I don't understand.

[00:10:14] Speaker 04:
You're here appealing their decision.

[00:10:17] Speaker 04:
You're either going to win or lose.

[00:10:19] Speaker 00:
Right.

[00:10:19] Speaker 00:
And I'm just trying to give you a context that there is a, even if you grant a, say, Tong appellant here, your trademark application can go on to be registered, the U.S.

[00:10:35] Speaker 00:
government still has a remedy at the end of the day if confusion does arise.

[00:10:40] Speaker 00:
The types of services provided here is a fictional law enforcement genre of a video game, movie, television series.

[00:10:50] Speaker 00:
It's not going to deal with military activities.

[00:10:53] Speaker 00:
It's not going to play up on military activities.

[00:10:57] Speaker 00:
Space Force, Space Military Force, Space Police Force.

[00:11:02] Speaker 02:
The mark you're seeking to register is US Space Force.

[00:11:05] Speaker 05:
So here's the problem with your argument.

[00:11:08] Speaker 05:
You know what the FDA is, right?

[00:11:09] Speaker 05:
Freedom of Administration.

[00:11:11] Speaker 05:
Let's say they don't sell t-shirts.

[00:11:12] Speaker 05:
I assume they don't.

[00:11:13] Speaker 05:
Let's say they don't sell their video games.

[00:11:15] Speaker 05:
I assume they don't.

[00:11:16] Speaker 05:
But I might be wrong.

[00:11:18] Speaker 05:
I don't know.

[00:11:19] Speaker 05:
but you want to adapt the trademark or get the trademark for food and drug administration as applied to video games.

[00:11:28] Speaker 05:
Don't you think it would be falsely connected with the FDA at that point?

[00:11:34] Speaker 05:
Or do you think, no, as a factual matter, it wouldn't be, because the nature of the goods are different than what people think the FDA does?

[00:11:39] Speaker 00:
And the way they present it.

[00:11:41] Speaker 00:
If it was tied in with that entertainment franchise that was called FDA, food, I don't want to say food, drugs.

[00:11:48] Speaker 00:
Can I make a little?

[00:11:49] Speaker 05:
I have a stupid question.

[00:11:50] Speaker 05:
I'm sorry.

[00:11:51] Speaker 05:
I don't remember this from your brief.

[00:11:53] Speaker 05:
Did you argue with specificity

[00:11:56] Speaker 05:
that the false designation question should also focus on the type of goods to which your mark is being applied?

[00:12:05] Speaker 00:
Yeah, and the Trademark Office has obviously pointed out that those are the same types of goods that are sold by the U.S.

[00:12:15] Speaker 00:
military.

[00:12:16] Speaker 00:
In other words, they franchise, they license out these same kind of goods.

[00:12:20] Speaker 00:
I understand that.

[00:12:21] Speaker 00:
But again, these are the same types of goods that a television show or a movie franchise would be looking to market on.

[00:12:28] Speaker 00:
And if you're trying to get investors interested in this kind of Western in-space endeavor, themed endeavor, they want to see, hey, can you license this?

[00:12:40] Speaker 00:
Can you create these t-shirts?

[00:12:44] Speaker 00:
mugs, things like that.

[00:12:45] Speaker 05:
Okay, well you're into rebuttal time, do you want to save some so you can respond to the government?

[00:12:49] Speaker 00:
Yes, I'll save three minutes if I have that.

[00:12:52] Speaker 05:
Thank you.

[00:12:52] Speaker 05:
Mr. Springer.

[00:13:06] Speaker 01:
Good morning, Your Honors, and may it please the court.

[00:13:07] Speaker 01:
Brian Springer, on behalf of the government.

[00:13:10] Speaker 01:
I'd just like to take a step back and explain what the context of this case is.

[00:13:13] Speaker 01:
So here, the board refused the registration of applicants proposed US Space Force trademark because it may falsely suggest a connection with the US government's military forces.

[00:13:24] Speaker 01:
That determination was supported by substantial evidence, including the president's public announcement of the idea to form a new branch of the military called the Space Force, the extensive media coverage of the president's statements by several major news outlets, and the fact that the proposed mark itself uses the same naming convention as federal agencies in general and the military branches in particular.

[00:13:50] Speaker 01:
I'm happy to answer.

[00:13:52] Speaker 01:
you know, whatever questions the court has about any of the specific evidence that's here in this case.

[00:13:59] Speaker 05:
Can you show me, you have argued in your brief, I think it's on roughly page 12, that we, our court, has adopted a four part test for how to determine

[00:14:21] Speaker 05:
whether a trademark fails Section 2A's falsely suggest the connection with a person living or dead thing.

[00:14:34] Speaker 05:
Can you help me walk through where this four-part test came from?

[00:14:37] Speaker 05:
And by the way, I'll just tell you, I see it in lots of TTAB cases for sure, but I don't actually see any court of ours that's ever articulated this four-part test.

[00:14:47] Speaker 05:
And you say it comes from our court.

[00:14:50] Speaker 05:
I don't see that, and I'm not positive that the test is right, and we'll talk about why.

[00:14:56] Speaker 05:
But can you tell me where you got the four-part test from?

[00:15:00] Speaker 01:
My understanding is that the four-part test was derived from this court's 1983 decision involving the University of Notre Dame.

[00:15:08] Speaker 05:
Can you show me where in that case?

[00:15:09] Speaker 01:
Your Honor, I can't point you specifically to where I think that... There is no four-port test in Notre Dame.

[00:15:14] Speaker 05:
There's not even anything that says there's four parts.

[00:15:17] Speaker 05:
None of these parts are mentioned anywhere in Notre Dame.

[00:15:21] Speaker 01:
I agree that Notre Dame doesn't describe the test as a four part test.

[00:15:26] Speaker 01:
It does talk about some of these things like, for example, the first factor, which is about whether there's a close enough match with a name or identity that's been used before.

[00:15:36] Speaker 01:
It also uses, I think, the phrase, you know, unmistakably point to another entity.

[00:15:40] Speaker 01:
I do agree that these factors do need to be interpreted in light of what the statutory language actually says, which is just asking whether or not there's a false suggestion of a connection with another person.

[00:15:53] Speaker 01:
But the board has applied this test across a range of cases, and most recently in this course.

[00:15:58] Speaker 05:
So I've got Notre Dame in front of me.

[00:16:00] Speaker 05:
You apparently don't have it.

[00:16:01] Speaker 05:
Does your co-counsel have it?

[00:16:02] Speaker 05:
Do you have the Notre Dame case with you?

[00:16:04] Speaker 05:
It's the case that you relied on throughout your brief, and you didn't bring it to court?

[00:16:09] Speaker 05:
I'm asking you a question.

[00:16:11] Speaker 01:
Your Honor, I don't have the case in front of me right now.

[00:16:13] Speaker 05:
Okay, so you're alive on it throughout your brief and you didn't bring it.

[00:16:18] Speaker 05:
Nowhere in it does it establish a four-part test, and the four parts that the teeth tab has adopted claiming that they harken back to this, I really just don't see any of the rhetoric even in this opinion that supports that this is a four-part test.

[00:16:33] Speaker 05:
Do you have the piano factory case with you?

[00:16:36] Speaker 05:
That's one of our cases that you also relied on.

[00:16:38] Speaker 01:
Sure.

[00:16:38] Speaker 01:
I don't have the case specifically in front of me.

[00:16:40] Speaker 01:
I do.

[00:16:41] Speaker 01:
It is the case that the piano factory case went through the four factors.

[00:16:45] Speaker 01:
It was another case where the board had applied the four-part test as it has across a range of cases, and the piano factory case walked through.

[00:16:52] Speaker 05:
The piano factory is one of our cases.

[00:16:54] Speaker 05:
It's not a board case.

[00:16:56] Speaker 01:
That's correct, Your Honor.

[00:16:57] Speaker 05:
Okay, so in the Piano Factory case, it walks through what the board did, but what it really does is to do it in a way where it says, in so doing, the board found, I'm reading to you from the opinion so you're not confused, because you don't have it, and I do.

[00:17:15] Speaker 05:
In so doing, the board found, one, that suite 16's registered mark is effectively the same as the appellant's name and identity.

[00:17:22] Speaker 05:
That the registered mark points uniquely and unmistakably to the appellant.

[00:17:25] Speaker 05:
That the appellee is not connected with the activities.

[00:17:28] Speaker 05:
And it goes through four things.

[00:17:32] Speaker 05:
I'll grant you, it goes through four things.

[00:17:34] Speaker 05:
And it claims that these are derived from Notre Dame.

[00:17:38] Speaker 05:
And it says that basically these are sufficient to establish what the board established.

[00:17:48] Speaker 05:
What bothers me about the adoption that this is some rigid four-part test is a case of ours that says the board has met its burden when it has shown these four facts.

[00:18:01] Speaker 05:
It's not the same thing as saying those four facts have to be shown in every case, right?

[00:18:05] Speaker 01:
You know, I appreciate that.

[00:18:06] Speaker 01:
And it may be that the four-part test isn't right.

[00:18:08] Speaker 01:
I mean, here, the other side isn't disputing that the four-part test is what should be used.

[00:18:13] Speaker 01:
And the board went through and found substantial evidence as to each of these pieces.

[00:18:17] Speaker 05:
With respect to law, I have to analyze what does this statutory provision mean.

[00:18:23] Speaker 05:
Don't you think it's relevant to that analysis if I think the board applied incorrect law in reaching that conclusion?

[00:18:31] Speaker 01:
The other side hasn't contested, hasn't suggested that the board erred in applying this for protest.

[00:18:37] Speaker 05:
Are you under the mistaken belief that they can either waive or somehow stipulate to legal questions?

[00:18:46] Speaker 01:
Your Honor, parties can waive legal arguments.

[00:18:49] Speaker 01:
And here, I think that it's not necessary for the court to decide whether or not this is the appropriate test in all circumstances.

[00:18:56] Speaker 01:
Instead, the question that's presented for the court is whether substantial evidence supports each of the factors of this test.

[00:19:02] Speaker 01:
And because the board has found that there's evidence supporting each of these factors, it's sufficient to sustain a false suggestion.

[00:19:09] Speaker 01:
Registration bar here.

[00:19:10] Speaker 05:
Okay.

[00:19:11] Speaker 05:
Let me tell you some of the stuff that I think is wrong with the test.

[00:19:13] Speaker 05:
So, for example, your test seems to suggest that there already has to be an entity

[00:19:26] Speaker 05:
in existence, which has the same name.

[00:19:33] Speaker 05:
Let's go to my Trump tennis example, because quite frankly, to be clear with you, my concern isn't just that the T-tab is using the wrong test.

[00:19:47] Speaker 05:
but that the test should broadly preclude more things than the test that you've articulated does.

[00:19:53] Speaker 05:
So to be clear, under my reading, you win.

[00:20:04] Speaker 05:
But what I'm concerned about is that the law actually clearly requires a different and broader

[00:20:13] Speaker 05:
preclusion of registration than what you've afforded by these factors.

[00:20:19] Speaker 01:
I think it's possible that that's true.

[00:20:22] Speaker 01:
Again, I don't think that the court needs to decide it here.

[00:20:25] Speaker 01:
I don't think that the test specifically says that an entity has to come into existence.

[00:20:29] Speaker 01:
And one thing I would flag is that often the way these issues arise, and I think the way that the test has kind of developed, is it's two competing commercial entities who are trying to use the same or similar marks.

[00:20:41] Speaker 01:
And so often some of the pieces and some of the factors that are

[00:20:45] Speaker 01:
present here might not look the same in a different case, and I would urge the court to... So let's look at my Trump tennis example.

[00:20:52] Speaker 05:
Let's assume he does not have tennis facilities.

[00:20:54] Speaker 05:
I'm not positive, but let's assume he doesn't.

[00:20:56] Speaker 05:
Don't you think that that would fall within the false designation language of the statute?

[00:21:04] Speaker 05:
Because even though he is not using a mark and doesn't have an entity called Trump tennis facility, it would falsely

[00:21:15] Speaker 05:
imply falsely designate, confuse consumers into believing that that tennis facility was being run by Donald Trump.

[00:21:24] Speaker 01:
Your Honor, it would depend on the evidence, but I think it could very well be the case.

[00:21:27] Speaker 01:
But because it refers specifically to Donald Trump, it uses Donald Trump's name.

[00:21:32] Speaker 01:
But that would both satisfy the first two factors, but also would satisfy the language in the statute.

[00:21:38] Speaker 05:
I don't know, because one of your factors

[00:21:43] Speaker 05:
is the mark has to be as same as or close approximation to the name previously used by another person or institution.

[00:21:51] Speaker 05:
And my concern there is Trump tennis facility is not almost identical to Donald Trump.

[00:21:58] Speaker 05:
Donald Trump golf course.

[00:22:01] Speaker 01:
My understanding is that the way that the board has applied this factor, even if sort of a piece of it is referring to somebody else, that can satisfy the first factor, and it does under that close approximation language.

[00:22:12] Speaker 05:
I don't think that's right.

[00:22:13] Speaker 05:
Tell me a case where you can say that.

[00:22:15] Speaker 05:
Tell me a case that says what you just said.

[00:22:18] Speaker 01:
Your Honor, I believe that there are broad decisions involving US entities.

[00:22:22] Speaker 01:
I mean, one, for example, I believe that the TTAB, or excuse me, that the board has decided is called Royal Cate.

[00:22:30] Speaker 01:
And so it's referring to Royal Cate within, or Cate within sort of the context of a mark.

[00:22:38] Speaker 01:
And that that was held to create a false suggestion of a connection with another person.

[00:22:46] Speaker 05:
I don't understand.

[00:22:48] Speaker 05:
Can you give me a little more detail on that?

[00:22:51] Speaker 01:
My understanding was that the case involved, it referred to Royal Kate, and although that was referring to Kate kind of herself, and because of the fact that it said Royal Kate, it was shown that that was pointing to a specific person, even though that wasn't something that was sort of used out in the world necessarily beforehand.

[00:23:12] Speaker 01:
I mean, I confess that in the context of government entities, you know, this test may not look exactly the same as when it's being applied with respect to two commercial entities who are trying to use the same trademark or almost the same trademark.

[00:23:26] Speaker 01:
But here, that's not what we're talking about.

[00:23:28] Speaker 01:
We're talking about the use of U.S.

[00:23:30] Speaker 01:
Space Force that sounds like it has a false association with the United States government and its military forces.

[00:23:37] Speaker 05:
We haven't had many occasions to address this statutory provision.

[00:23:43] Speaker 05:
But the TTAB has had lots of occasions to do so in which it's consistently applying what appears to me to be the wrong test.

[00:23:53] Speaker 05:
And I'll be honest, I actually went on the trademark register in the last two days to assess whether I think the TTAB, in light of this being the test they're using,

[00:24:06] Speaker 05:
is or is not granting registrations and fidelity to the statute.

[00:24:15] Speaker 05:
Did you know that they've allowed registrations on all kinds of things like, okay, Matt, what's the electrical one?

[00:24:25] Speaker ?:
U.S.

[00:24:25] Speaker 05:
electrical testing.

[00:24:26] Speaker 05:
U.S.

[00:24:26] Speaker 05:
electrical testing.

[00:24:28] Speaker 05:
If a man came to my door with a clipboard and said, I'm from the U.S.

[00:24:32] Speaker 05:
electrical testing agency,

[00:24:35] Speaker 05:
I assure you I would think he was from the U.S.

[00:24:37] Speaker 05:
government, wouldn't you?

[00:24:39] Speaker 01:
Your Honor, I think it would depend on the evidence that was presented.

[00:24:42] Speaker 01:
The board is required to examine each trademark on its own facts and at the time that something comes up.

[00:24:47] Speaker 05:
I didn't ask you what the board would do.

[00:24:48] Speaker 05:
I asked you if a guy shows up at your door and he's got a clipboard and a uniform and says, I'm from the U.S.

[00:24:55] Speaker 05:
electrical testing facility.

[00:24:58] Speaker 05:
I'm here on important business.

[00:25:01] Speaker 05:
Would you assume he was from our United States government or not?

[00:25:04] Speaker 01:
No, I don't know what I would assume in that situation.

[00:25:06] Speaker 01:
I think it's possible that some people would assume that that has an association with the United States government, and that could pose a problem potentially, but again, it would depend on you.

[00:25:15] Speaker 05:
I don't know what you would assume.

[00:25:16] Speaker 05:
You're a person.

[00:25:17] Speaker 05:
You're standing in front of me.

[00:25:19] Speaker 05:
You can't tell me what you would think as a person.

[00:25:22] Speaker 05:
I understand that you are one human individual, and I'm not saying that what you personally think binds the U.S.

[00:25:28] Speaker 05:
government in some important way, but I think you can answer the question.

[00:25:32] Speaker 05:
What do you think he was from the U.S.

[00:25:34] Speaker 05:
government?

[00:25:35] Speaker 01:
I think it would depend on the context.

[00:25:39] Speaker 05:
Tell me what context you need.

[00:25:40] Speaker 05:
I'll flush out the hypothetical more.

[00:25:42] Speaker 05:
He's got a van.

[00:25:43] Speaker 05:
It says U.S.

[00:25:44] Speaker 05:
electrical facility.

[00:25:45] Speaker 05:
Actually, there's a flag on it because he's a gosh darn patriot.

[00:25:49] Speaker 01:
I think it's possible that me or anyone else in that situation could think that this has an association with the United States government.

[00:25:57] Speaker 01:
Here, I don't think that the court needs to delve into that, because even if it just treats this test as being sufficient to meet the statutory question of whether there's a false suggestion of a connection with another person, we have substantial evidence in this record to support that determination.

[00:26:11] Speaker 01:
And we're talking specifically about US Space Force that falsely points to the United States government having an association with

[00:26:19] Speaker 01:
applicants products.

[00:26:26] Speaker 05:
Because most of what happened with the Space Force here, opposing counsel points out, occurred like it really coming into existence in any meaningful form after the date of registration.

[00:26:38] Speaker 05:
So I do think that the time at which it has to suggest, given that Section 2 expressly says a mock will be registered unless, don't you think it tethers the analysis under Section 2 to the time of registration?

[00:26:58] Speaker 01:
You know, there could be two different times.

[00:27:01] Speaker 01:
It could be the time of application or the time of registration.

[00:27:04] Speaker 01:
The board here, as this case comes up to this court, the board said it didn't need to resolve that question one way or another, because under either timing, there was more than enough evidence to say that at the time, the public would associate this phrase, this name, or identity with the US government and have that exact deception or confusion that this registration bar is seeking to prevent.

[00:27:28] Speaker 05:
Let me ask you something.

[00:27:30] Speaker 05:
Registration is a fixed event, correct?

[00:27:35] Speaker 05:
You get registered.

[00:27:36] Speaker 01:
At some point, yes, if the registration is approved.

[00:27:40] Speaker 05:
So suppose that US Space Force didn't exist in any form.

[00:27:45] Speaker 05:
There was no Trump speech.

[00:27:46] Speaker 05:
There was nothing.

[00:27:48] Speaker 05:
And they come along and attempt to register US Space Force.

[00:27:53] Speaker 05:
And you get their registration, and you grant their registration.

[00:27:57] Speaker 05:
And a year later, Trump decides to create the US Space Force and does.

[00:28:03] Speaker 05:
Do you believe under Section 2A, you can cancel the registration at that point?

[00:28:08] Speaker 01:
Sure.

[00:28:08] Speaker 01:
I think, again, that the board didn't specifically address what the right timing was here.

[00:28:13] Speaker 01:
It didn't find it necessary to resolve this case.

[00:28:16] Speaker 01:
And so we have litigated the case on the understanding both.

[00:28:19] Speaker 01:
But here, we have the US Space Force today.

[00:28:22] Speaker 01:
So today, this would be a very easy case.

[00:28:23] Speaker 05:
Is Section 2A in front of you?

[00:28:25] Speaker 01:
I do, Your Honor.

[00:28:36] Speaker 05:
Do you see how it begins?

[00:28:37] Speaker 05:
No trademark shall be refused registration unless.

[00:28:41] Speaker 05:
So looking at this statute, is it your belief that once you've granted a trademark registration, that Section A continues to allow the agency to make subsequent decisions about whether that registration, once granted, could continue to exist?

[00:28:58] Speaker 01:
You know, I believe that trademark rights are, you know, it depends on the time at which things come up.

[00:29:04] Speaker 01:
And I, for example, I believe that inherent distinctiveness or, you know, questions of whether there's been genericide or something that's assessed sort of after the fact.

[00:29:11] Speaker 01:
So there could be times where the rights change even after the registration.

[00:29:15] Speaker 04:
I'm a little confused.

[00:29:18] Speaker 04:
And I think this is possibly what the chief is getting at as well.

[00:29:22] Speaker 04:
But why, if it's deception you're looking at, why do you need a U.S.

[00:29:27] Speaker 04:
Space Force to actually exist?

[00:29:29] Speaker 04:
Isn't the question you look at about whether, if one saw somebody using U.S.

[00:29:34] Speaker 04:
Space Force, whether or not there's an official Space Force already created in operation, somebody would identify that as a government created entity.

[00:29:44] Speaker 04:
So that's what I thought the test was, but it doesn't seem like your four-part test would allow for that.

[00:29:52] Speaker 04:
I think the four-part test does allow for that.

[00:29:53] Speaker 01:
I think you're exactly correct that there does not need to be a U.S.

[00:29:57] Speaker 01:
Space Force in existence at the time of the application or any other time for it to falsely suggest a connection with another person.

[00:30:04] Speaker 01:
Because here the other person or institution that we're talking about is the United States government's military forces.

[00:30:11] Speaker 01:
And the phrase U.S.

[00:30:12] Speaker 01:
Space Force, you know, the proposed trademark here, falsely suggests a connection with the U.S.

[00:30:17] Speaker 01:
government, whether or not the entity, the Space Force, has fully come into existence or not.

[00:30:24] Speaker 04:
Well, I do appreciate that reading me analysis here.

[00:30:27] Speaker 04:
I understand you do as little as you have to do to get an affirm in this case, but the boys analysis and your analysis places a lot of emphasis on Trump having said it and it haven't been in operation.

[00:30:39] Speaker 04:
It suggests at least that that is a fact.

[00:30:41] Speaker 04:
that you think is necessary or required under the four factor test.

[00:30:45] Speaker 04:
And you agree here that it's not.

[00:30:48] Speaker 01:
Your honor, the board did make some of those statements in its initial decision, but then on reconsideration, it said, even if you limit it to the time when the application was submitted, so at a time when the US Space Force hadn't yet come into existence to answer.

[00:31:04] Speaker 04:
Yeah, but then they paired that with the Trump Senate and a lot of information about his speech.

[00:31:08] Speaker 04:
They seem to rely heavily on the speech, not to say it doesn't matter at all.

[00:31:14] Speaker 04:
It's still deceptively a government-associated entity.

[00:31:18] Speaker 01:
Your Honor, here, that's correct.

[00:31:20] Speaker 01:
The board here didn't have to pick and choose kind of particular pieces of evidence because it had overwhelming evidence in front of it that showed that this name would be falsely associated with the U.S.

[00:31:31] Speaker 01:
government, including the President's speech.

[00:31:33] Speaker 01:
including the insuring media coverage that use the term Space Force and headlines in the article.

[00:31:39] Speaker 05:
How many of those items occurred prior to the application date here as opposed to the registration date?

[00:31:45] Speaker 01:
So in the record, and this is a representative sample that the examiner found,

[00:31:50] Speaker 01:
There's four articles that are from major news sources.

[00:31:53] Speaker 01:
There's also the Trump speech that was put out in the world.

[00:31:56] Speaker 01:
I mean, I would note that the applicant itself said that it heard Trump's speech and then went out and applied for registration.

[00:32:02] Speaker 05:
And so that was prior to the application?

[00:32:05] Speaker 01:
That was prior to the application, yes, Your Honor.

[00:32:06] Speaker 04:
It was like a three-day period.

[00:32:08] Speaker 01:
Yeah, it was a very short period.

[00:32:10] Speaker 01:
We're right that Donald Trump made his speech, I believe, on March 13th.

[00:32:15] Speaker 01:
And March 13th and 14th, there were a series, a flurry of news articles that talked about the President of the United States' statements, and specifically about the Space Force.

[00:32:25] Speaker 01:
And then the application didn't come until March 19th, several days later.

[00:32:28] Speaker 04:
When does your friend get the suggestion that everybody thought it was a joke?

[00:32:34] Speaker 01:
The president's speech, in the speech he says that he had previously suggested it was a joke, but he had come around to the idea that he thought that this was a serious thing and because the United States was already spending a lot of money on space operations that it was something that he endorsed.

[00:32:52] Speaker 05:
I guess I'm still baffled as to why you will not acknowledge that Section 1052 only applies to marks upon registration and that the government doesn't have the right to cancel marks under Section 1052.

[00:33:10] Speaker 05:
I'm not saying there aren't other sections that the government doesn't have a right to cancel marks or refuse registration of marks already registered because they later in time become

[00:33:21] Speaker 05:
associated with someone.

[00:33:23] Speaker 01:
The only reason I have any hesitation is just that this specific issue hasn't been briefed here.

[00:33:29] Speaker 01:
Of course there are cancellation and opposition proceedings that can happen down the road where a trademark can be.

[00:33:35] Speaker 05:
This is the statute at issue and one of the questions that was raised here throughout this briefing, throughout the case of the board, was the time at which we should be measuring for these associations.

[00:33:51] Speaker 05:
So you should be prepared to address that question.

[00:33:55] Speaker 01:
the reason that I don't want I don't want to get ahead of the board because what the board said here is that it didn't need to resolve the issue it recognized that there were arguments on both sides and it said it didn't need to resolve the issue because regardless of which time you pick it would still be the case there was a false association whether you were using the application date or using the actual registration rate and that the board would leave it for a time when you know a case where it actually changed the outcome to resolve it is a complex issue that requires you know

[00:34:25] Speaker 01:
understanding the interaction of multiple trademark provisions.

[00:34:29] Speaker 05:
But my question to you wasn't even just whether or not you have to look at the application date or the registration date, but whether or not the PTO thinks it can apply these provisions even after the registration date to somehow affect a trademark.

[00:34:46] Speaker 01:
Sure.

[00:34:47] Speaker 01:
Again, that issue wasn't specifically briefed or presented here, and I don't... Section 1052?

[00:34:52] Speaker 02:
I mean, it does say

[00:34:54] Speaker 02:
No trademark shall be refused registration unless, and then it lists things.

[00:34:59] Speaker 02:
So maybe there's a different statutory provision that talks about cancellation and opposition under different grounds.

[00:35:09] Speaker 02:
But if the question is simply whether under section 1052 it's limited to registration, I don't see how you argue something different.

[00:35:18] Speaker 01:
I don't know the answer off the top of my head.

[00:35:21] Speaker 01:
I believe Piano Factory was an example of a case where a trademark had been registered and it was a cancellation proceeding.

[00:35:29] Speaker 01:
And the way that Piano Factory described it was looking at the time of registration.

[00:35:33] Speaker 01:
I don't know off the top of my head whether or not the answer would be different when you're talking about sort of later developed facts.

[00:35:40] Speaker 01:
And that wasn't an issue that was presented in this case.

[00:35:46] Speaker 01:
And there's no other questions.

[00:35:59] Speaker 00:
I'd like to address some of the issues raised by.

[00:36:02] Speaker 00:
First off, I believe that the rule is that trademark rights are acquired at the time, tentative rights are acquired at the time of filing of the application.

[00:36:12] Speaker 00:
So that starts a clock in that kind of thing.

[00:36:14] Speaker 00:
And also, as to issues of previous registrations of the U.S.

[00:36:19] Speaker 00:
Space Force, there have been numerous ones.

[00:36:21] Speaker 00:
I believe that they're cited in the appeal brief.

[00:36:25] Speaker 00:
for various kinds of goods and services without creating confusion obviously or false suggestion of a connection with the U.S.

[00:36:32] Speaker 00:
government for educational services, things like that.

[00:36:37] Speaker 00:
Groups of people are banding together to teach kids about space activities.

[00:36:42] Speaker 00:
And then I'd also want to point out that

[00:36:45] Speaker 00:
You've questioned about the test that's presented here and relied upon by the board.

[00:36:51] Speaker 00:
I would just say the underlying law is vague.

[00:36:54] Speaker 00:
We've got an issue here where artists are questioning why be able to use this mark in a fictional way to present a show that's entertaining or educational without getting

[00:37:07] Speaker 00:
you know, without being able to obtain a trademark registration was necessary for funding for the whole endeavor.

[00:37:14] Speaker 00:
And I just certainly look forward to further questions that you might have in this regard.

[00:37:18] Speaker 00:
Thank you very much.

[00:37:21] Speaker 05:
We thank both counsel for their argument.

[00:37:23] Speaker 05:
The case is taken under submission.