Federal Circuit disposition — 23-1527

United States Court of Appeals
for the Federal Circuit
______________________
IN RE: THOMAS D. FOSTER, APC,
Appellant
______________________
2023-1527
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
87981611.
______________________
Decided: May 7, 2025
______________________
THOMAS D. FOSTER , TDFoster - Intellectual Property
Law, San Diego, CA, argued for appellant.
BRIAN JAMES SPRINGER , Appellate Staff, Civil Division,
United States Department of Justice, Washington, DC, ar-
gued for appellee Coke Morgan Stewart. Also represented
by BRIAN M. BOYNTON, D ANIEL TENNY ; K AKOLI CAPRIHAN,
CHRISTINA J. H IEBER, AMY J. N ELSON, Office of the Solici-
tor, United States Patent and Trademark Office, Alexan-
dria, VA.
______________________
Before M OORE, Chief Judge, PROST and S TOLL, Circuit
Judges.
M OORE , Chief Judge.
Case: 23-1527 Document: 61 Page: 1 Filed: 05/07/2025

-- 1 of 10 --

IN RE : THOMAS D . FOSTER , APC 2
Thomas D. Foster, APC (Foster) appeals a Trademark
Trial and Appeal Board (Board) decision affirming the ex-
amining attorney’s refusal to register the mark US SPACE
FORCE pursuant to § 2(a) of the Lanham Act based on
false suggestion of a connection with the United States. We
affirm.
BACKGROUND
In a March 13, 2018 speech covered by the national me-
dia, President Donald J. Trump proposed the formation of
a sixth military branch to cover space operations called the
“Space Force.” J.A. 234. On March 19, 2018, Foster filed a
trademark application under § 1(b) of the Lanham Act (15
U.S.C. § 1051(b)) based on an intent to use the mark
US SPACE FORCE for a variety of goods and services. J.A.
39–50. In June 2018, President Trump issued a directive
to create the U.S. Space Force and, in December 2019, Con-
gress passed legislation officially establishing it as the
sixth military branch.
The examining attorney refused to register Foster’s
mark for all classes of goods pursuant to § 2(a) of the Lan-
ham Act (15 U.S.C. § 1052(a)) based on false suggestion of
a connection with the United States. Foster appealed to
the Board, which affirmed the refusal. In re Foster, No.
87981611, 2022 TTAB LEXIS 487 (T.T.A.B. Sept. 19, 2022)
(Final Decision). Foster requested reconsideration, argu-
ing the Board erred in its false connection analysis to the
extent it did not credit Foster’s filing of its intent-to-use
application as constructive use of the mark and by relying
upon evidence post-dating the filing date. J.A. 1361–62.
The Board denied reconsideration. In re Foster, No.
87981611, 2022 TTAB LEXIS 465 (T.T.A.B. Dec. 12, 2022)
(Reconsideration Decision). Specifically, the Board held
Foster was not the prior user even if the application’s filing
date was the constructive use date and found “ample” rec-
ord evidence supporting its false connection analysis, even
without considering evidence that post-dates the filing
Case: 23-1527 Document: 61 Page: 2 Filed: 05/07/2025

-- 2 of 10 --

IN RE : THOMAS D . FOSTER , APC 3
date. Id. at *8–9, *13–14. Foster appeals. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(4)(B) and 15 U.S.C.
§ 1071(a)(1).
D ISCUSSION
Section 2(a) of the Lanham Act bars trademark regis-
tration under certain circumstances, such as false sugges-
tion of a connection. 15 U.S.C. § 1052(a). A trademark
cannot be registered if it may “falsely suggest a connection
with persons,1 living or dead, institutions, beliefs, or na-
tional symbols.” Id. This protects consumers from confu-
sion as to the origin of goods and, importantly, also protects
persons and institutions from exploitation of their persona.
Bridgestone/Firestone Rsch., Inc. v. Auto. Club De L’Quest
De La France, 245 F.3d 1359, 1363 (Fed. Cir. 2001).
Whether a mark falsely suggests a connection with per-
sons or institutions, and is therefore unregistrable, is a
question of law based upon underlying factual findings. Cf.
In re Geller, 751 F.3d 1355, 1358 (Fed. Cir. 2014). We re-
view the Board’s ultimate legal conclusion as to registrabil-
ity de novo and its factual findings for substantial evidence.
Id.
Foster challenges the Board’s false connection analysis
under § 2(a), arguing (1) the Board improperly considered
facts that post-date the application’s filing date and (2) the
Board’s findings under the first two parts of the four-part
false connection test are not supported by substantial evi-
dence. Appellant Br. 15–25. We do not agree.
1 The Lanham Act defines “person” to include “the
United States, any agency or instrumentality thereof, or
any individual, firm, or corporation acting for the United
States and with the authorization and consent of the
United States.” 15 U.S.C. § 1127.
Case: 23-1527 Document: 61 Page: 3 Filed: 05/07/2025

-- 3 of 10 --

IN RE : THOMAS D . FOSTER , APC 4
I. Timing
The parties dispute the appropriate timing for as-
sessing false suggestion of a connection—that is, whether
facts after the application’s filing date can be considered.
Foster argues determining whether there is a false connec-
tion can only be based on facts prior to the application’s
filing date. Appellant Br. 15–22. The government argues
the determination can be based on facts after the filing
date. Appellee Br. 16 n.1.
We addressed the timing issue for false connection in
Piano Factory Group, Inc. v. Schiedmayer Celesta GmbH,
11 F.4th 1363, 1379 (Fed. Cir. 2021). We held “the Board
is required to assess the facts as of the time the mark was
registered.” Because Piano Factory involved a cancellation
proceeding that occurred after the mark was registered on
the Principal Register, “the time the mark was registered”
was self-evident; it was the registration date on the Princi-
pal Register. Id. The present case, however, involves a
refusal to register.
For a refusal to register, the appropriate timing cannot
be the registration date because the mark was never regis-
tered. For other § 2 inquiries that occur before registra-
tion, our predecessor court suggested the Board can assess
the facts as of the time the examination occurs. R. J. Reyn-
olds Tobacco Co. v. Am. Brands, Inc., 493 F.2d 1235, 1238
(C.C.P.A. 1974) (holding that evidence showing likelihood
of confusion under § 2(d) in an opposition proceeding2 can
be considered “through the latest date permitted by the
2 An opposition proceeding, like a refusal to register,
occurs when the application is pending and there has been
no registration on the Principal Register. Accordingly, the
appropriate timing for the Board to assess facts in a false
connection analysis is the same for both an opposition pro-
ceeding and a refusal to register.
Case: 23-1527 Document: 61 Page: 4 Filed: 05/07/2025

-- 4 of 10 --

IN RE : THOMAS D . FOSTER , APC 5
procedural rules of the Patent Office for taking testimony
and presenting evidence”); Application of Thunderbird
Prods. Corp., 406 F.2d 1389, 1392 (C.C.P.A. 1969) (holding
that evidence showing descriptiveness under § 2(e) in a re-
fusal to register can be considered “at least to the time the
application is acted on in the Patent Office”). And we have
held that evidence showing distinctiveness under § 2(f) for
a refusal to register can be considered through “the date of
the Board’s decision.” In re Chippendales USA, Inc., 622
F.3d 1346, 1354–56 (Fed. Cir. 2010). For consistency, we
hold § 2(a) bars registration of a pending application for a
mark that falsely suggests a connection as of the time of
examination. The false connection inquiry can therefore
include evidence that comes into existence during the ex-
amination process.
Here, the Patent and Trademark Office considered the
registrability of Foster’s mark during examination and did
not end its analysis until the Board issued its December 12,
2022 Reconsideration Decision affirming the examiner’s re-
fusal to register. The appropriate timing to assess whether
there was a false connection properly ran through Decem-
ber 12, 2022. On appeal, Foster fails to show the Board
relied on evidence that post-dates the Reconsideration De-
cision. Accordingly, we hold the Board did not err in its
consideration of the evidence in its false connection analy-
sis.
II. False Connection
To determine whether Foster’s mark falsely suggested
a connection, the Board applied the following four-part le-
gal test:
To establish that a proposed mark falsely suggests
a connection with a person or an institution, it
must be shown that:
Case: 23-1527 Document: 61 Page: 5 Filed: 05/07/2025

-- 5 of 10 --

IN RE : THOMAS D . FOSTER , APC 6
(1) the mark is the same as, or a close ap-
proximation of, the name or identity previ-
ously used by another person or institution;
(2) the mark would be recognized as such,
in that it points uniquely and unmistaka-
bly to that person or institution;
(3) the person or institution named by the
mark is not connected with the activities
performed by the applicant under the
mark; and
(4) the fame or reputation of the person or
institution is such that, when the mark is
used with the applicant’s goods or services,
a connection with the person or institution
would be presumed.
Final Decision at *5–6 (citing Univ. of Notre Dame Du Lac
v. J.C. Gourmet Food Imps. Co., 703 F.2d 1372 (Fed. Cir.
1983)). The Board determined there was a false connection
because all four parts of the test were satisfied. Final De-
cision at *6–22; Reconsideration Decision at *4–15. On ap-
peal, Foster argues the Board’s findings as to the first two
parts are not supported by substantial evidence. Appellant
Br. 14–25. We do not agree.
A.
The four-part test provides a helpful framework to as-
sess whether there is a false suggestion of a connection, but
it is not an exhaustive list. For example, it does not include
all factors addressed in Notre Dame, including whether
there was evidence the mark holder intended to create a
false association between his mark and the person, which
would be “highly persuasive” of a false connection. 703
F.2d at 1377. Moreover, certain DuPont factors used to de-
termine a likelihood of confusion under § 2(d) may be help-
ful in a false connection analysis depending on the factual
situation, including, for example, the nature of the goods or
Case: 23-1527 Document: 61 Page: 6 Filed: 05/07/2025

-- 6 of 10 --

IN RE : THOMAS D . FOSTER , APC 7
services. See In re E.I. du Pont de Nemours & Co., 476 F.2d
1357, 1361 (C.C.P.A. 1973); see also 3 J. Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition § 19:76
(5th ed. 2025) (“This ‘false’ association language is very
much like the ‘likelihood of confusion’ language . . . .”).
The first part of the false connection test asks whether
“the mark is the same as, or a close approximation of, the
name or identity previously used by another person or in-
stitution.” The Board found Foster’s US SPACE FORCE
mark was the same as or a close approximation of a name
or identity of the United States.3 Final Decision at *6–9;
Reconsideration Decision at *8–10. As an initial matter,
the mark need not be identical to the name or identity. It
would suffice if the US SPACE FORCE mark falsely sug-
gests a connection to the United States, even if the U.S.
Space Force entity had not come into existence. The issue
is whether the US SPACE FORCE mark falsely suggests a
3 The Board discusses whether the false suggestion
of a connection is with the U.S. Space Force, the U.S. Gov-
ernment, an agency of the U.S. Government, a branch of
the U.S. military, and/or President Trump. Final Decision
at *2, *7, *10; Reconsideration Decision at *2, *11, *14.
While the Board could have been clearer in its analysis, it
is undisputed these are all instrumentalities of the United
States and the connection is with the United States, par-
ticularly a military branch of the United States. Final De-
cision at *20 (“We agree with the Examining Attorney to
the extent that various governmental entities, including
the broad term U.S. Government to President Trump to the
agency U.S. Space Force, can all be characterized as gov-
ernment instrumentalities and used interchangea-
bly . . . .”).
Case: 23-1527 Document: 61 Page: 7 Filed: 05/07/2025

-- 7 of 10 --

IN RE : THOMAS D . FOSTER , APC 8
connection to the U.S., which undeniably has been used.4
In this case, however, the United States was using the en-
tirety of the mark, U.S. Space Force, during the relevant
time.
The Board’s finding that the mark is the same or a close
approximation is supported by substantial evidence. The
Board relied on President Trump’s March 13, 2018 an-
nouncement before an audience of Marines at the Miramar
Marine Corps Air Station in San Diego where he stated the
United States was creating a new military branch called
the U.S. Space Force. Reconsideration Decision at *8–10.
The Board also relied on national news coverage surround-
ing President Trump’s announcement to show the name
U.S. Space Force was associated with the U.S. military and
widely known. See, e.g., id. at *9 n.13 (citing J.A. 809–12
(The Atlantic article)), n.14 (citing J.A. 816–22 (Newsweek
article)). The record includes two other articles pre-dating
the application’s filing date, which also cover President
Trump’s announcement. J.A. 288–92 (CNBC); J.A. 563–68
(Vox). The Board further relied on evidence post-dating the
application’s filing date, including President Trump’s June
18, 2018 speech where he directed Congress to create the
U.S. Space Force; the official establishment of the U.S.
Space Force on December 20, 2019; and continuing news
coverage on the creation of the U.S. Space Force. Final De-
cision at *8, *10 nn.10–11. There is therefore substantial
evidence supporting the Board’s finding regarding the first
factor.
4 This is not to say that every use of United States or
U.S. within a mark would falsely suggest a connection with
the United States. It is a highly factual inquiry which
takes into account a number of factors.
Case: 23-1527 Document: 61 Page: 8 Filed: 05/07/2025

-- 8 of 10 --

IN RE : THOMAS D . FOSTER , APC 9
B.
The second part of the false connection test is whether
“the mark would be recognized as such, in that it points
uniquely and unmistakably to that person or institution.”
The Board found Foster’s US SPACE FORCE mark points
uniquely and unmistakably to the United States. Final De-
cision at *9–21; Reconsideration Decision at *13–14.
The Board’s finding is supported by substantial evi-
dence. The Board relied upon President Trump’s an-
nouncement and subsequent coverage in major news
publications to show the mark US SPACE FORCE points
uniquely and unmistakably to the United States, particu-
larly a military branch called the U.S. Space Force. Final
Decision at *9–10; Reconsideration Decision at *13–14.
The Board also noted that Foster’s mark and the name
U.S. Space Force are identical. Final Decision at *22. This
is sufficient for substantial evidence. See In re Charger
Ventures LLC, 64 F.4th 1375, 1381 (Fed. Cir. 2023).
Foster argues that certain evidence it submitted shows
US SPACE FORCE does not point uniquely and unmistak-
ably to the United States but makes no substantive argu-
ments and merely provides a list of citations. Appellant Br.
24–25. This is insufficient to show the Board’s finding
lacked substantial evidence. In re Jolley, 308 F.3d 1317,
1320 (Fed. Cir. 2002) (“If the evidence in record will sup-
port several reasonable but contradictory [findings], we
will not find the Board’s decision unsupported by substan-
tial evidence simply because the Board chose one [finding]
over another plausible alternative.”).
Foster does not challenge the Board’s analysis on the
remaining parts of the false connection test. Accordingly,
we hold that substantial evidence supports the Board’s
findings under the false connection test.
Case: 23-1527 Document: 61 Page: 9 Filed: 05/07/2025

-- 9 of 10 --

IN RE : THOMAS D . FOSTER , APC 10
CONCLUSION
We have considered Foster’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm.
AFFIRMED
Case: 23-1527 Document: 61 Page: 10 Filed: 05/07/2025

-- 10 of 10 --