Creative Freedom
Download our Appeal Brief below and join our fight to have creative freedom in artistic publishing.
Support the Fight for Creative Freedom
The court’s refusal to register US SPACE FORCE—a mark filed before the military branch even existed—sets a dangerous precedent. It threatens the rights of content creators, entrepreneurs, and anyone who relies on trademarks to build a future. I am taking this battle to the U.S. Supreme Court because the law must protect innovation, not punish it. On this page, you’ll find the court filings, a detailed analysis, a draft amicus brief you can use or share, and a short video—“US SPACE FORCE: A Battle for Creative Freedom”—that explains why this case matters to all of us. Stand with me. Share the video. File an amicus brief with the Supreme Court. Help defend creative rights before they’re erased by vague laws and shifting government policies.
Join us in our fight for “Creative Freedom” by using our submission form, to contact us about the appeal case and how you can help.
Thank you for your support. — Thomas D. Foster
Analysis of the case
- The Lanham Act gives an intent-to-use (ITU) applicant a constructive use date as of the filing date (15 U.S.C. § 1057(c)), meaning the applicant is entitled to priority based on that date.
- Yet here, the Court allowed the USPTO to use later-occurring government actions—including the June 2018 directive and December 2019 legislation—to retroactively deny Foster’s rights.
- This creates a Catch-22: if events that happen after you file can undermine your rights, the constructive use doctrine is meaningless.
- The identity that Foster supposedly falsely connected to—a military branch called U.S. Space Force—was not yet formed or legally recognized.
- The opinion claims that the U.S. government or its “instrumentalities” were broadly suggested by the mark, but this is unmoored from any specific, pre-existing institution.
- The Court’s willingness to treat a speculative idea publicly floated by the President as an institutional identity creates a dangerous vagueness that chills speech and creative business ventures.
- The U.S. Space Force
- The U.S. Government
- The military
- President Trump
- The Court says it doesn’t matter which one, because all are “instrumentalities of the U.S.” But false suggestion claims under § 2(a) require a mark to point “uniquely and unmistakably” to a specific person or institution.
- This dilution of the standard means any general patriotic or governmental reference could be subjectively refused—without clear limits.
- The Piano Factory reasoning is based on due process principles: registrability should be judged at a defined moment, not adjusted as facts evolve.
- Allowing shifting facts during the USPTO examination phase introduces legal unpredictability—and contradicts how § 2 is applied elsewhere (e.g., likelihood of confusion under § 2(d)).
- The vague application of § 2(a) and reliance on post-filing facts mean Foster could not have known at the time of filing that his mark would be refused.
- That lack of fair notice may violate due process under the Fifth Amendment, as laws and government actions must give clear guidance on what is prohibited.
