“Given the overall use of the two marks, the fictitious nature of the Starfleet logo and the lack of intent, it is hard to believe that a court would find infringement.”
On January 24, 2020, the United States Space Force logo hit the headlines – and photon torpedoes began flying. Almost instantly, those familiar with the Star Trek Starfleet Command insignia pointed to a striking similarity, and even George Takei (who played USS Enterprise helmsman Hikaru Sulu) tweeted “Ahem. We’re expecting royalties from it…”
Aside from the actual origin of the Space Force insignia (derived from the Air Force Space Command emblem), could anyone really claim that the Space Force emblem is a forgery of mark on the Star Trek logo?
Real versus fictitious clean tables
Let’s start by looking at the Seventh Circuit case of Fortres Grand v. Warner Brothers, which dealt with another variant of the overlap between fiction and reality. As you may recall, from the movie The dark knight rises, Catwoman wants to erase her criminal record from all databases in the world, giving her the chance to resume a normal life. The perfect tool is “the clean slate”, a database hacking program from the Rykin Data Corporation. Rykin himself was fictional, as was the software, but real-world company Fortres Grand actually marketed Clean Slate software to erase user activity from public-access computers.
Fortres Grand sued Warner Brothers for trademark infringement and, on appeal to the Seventh Circuit Court of Appeals, alleged “reverse confusion”. Fortres claimed that consumers would find Warner Brothers’ use of the “clean slate” name confusing, leading them to believe that the real-world software was tied to the film company. The Seventh Circuit Court of Appeals thought otherwise, writing “[w]Whatever these unusually gullible hypothetical consumers are, Fortres Grand has not and could not plausibly allege that consumers are confused by thinking that Fortres Grand is selling such an evil hacking tool under license from Warner Bros. Fortes Grand Corp. against Warner Bros. Ent. Inc., 763 F.3d 696, 705 (7th Cir. 2014).
Given the fictional nature of the software and the fact that the term was only used descriptively in the cinematic dialogues, the court ruled in favor of Warner Brothers. In balancing a fictitious product with a real-world offering, the court said “[t]Trademark law protects the source function of words used in conjunction with goods and services in the marketplace, not the words themselves. Since Warner Brothers offered no real service, and other factors considered in trademark infringement were not strong enough to move the needle, there was no trademark infringement.
The Seven Factor Test
So what about Space Force versus Starfleet? Consider the seven-factor test used by the court in Forts Grand:
- the degree of similarity between the marks in appearance and suggestion. Are the two brands alike? Certainly. Regardless of the emblems’ respective histories, there’s certainly a confluence of components and arrangements.
- the similarity of the products for which the name is used. Space Force “organizes, trains, and equips space forces to protect U.S. and allied interests in space and provide space capabilities to the joint force. USSF responsibilities include the development of military space professionals, the acquisition of military space systems, the maturation of military doctrine for space power, and the organization of space forces to present to our combatant commands. The Star Trek Emblem, in our real world, may be used to sell certain commercial products, but does not actually provide services related to military space systems, space domain protection, or daring to go anywhere. where off planet earth.
- the zone and mode of simultaneous use. The Space Force not only offers the above services. As part of uniform development (and possibly brand marketing), it will offer “branded” clothing, patches, gear for its members and the public, and possibly even toys and games. . (Visit a local PX military base, and you’ll see all of these available items tied to local units and missions.) Given these offerings in the real-world market, the overlap becomes a little clearer.
- the degree of caution likely to be exercised by consumers. Are consumers careful in choosing suppliers of space combat power? May be. Buying some cool space-related or Star Trek gear? Maybe not so much. One can easily imagine the accidental gift of a Star Trek hat to the teenager preparing for basic Space Force training.
- strength [or “distinctiveness”] of the complainant’s mark. The Space Force logo is brand new, while the Star Trek symbol (or its variants) has been known to the public since the TV show launched in 1966. Is the Starfleet logo distinctive? Certainly.
- real confusion. Since the Space Force logo is brand new, there’s probably no real confusion yet. Only time will tell how many of these accidental freebies will be given this year.
- an intention on the part of the alleged infringer to pass on his products as those of another. While some cried foul, and others alleged laziness, arguments that Space Force is trying to be perceived as a Starfleet offer are unlikely.
Space Force logo trumps fiction
So, does the new logo infringe when viewed as part of a brand analysis? Unlikely. Given the overall use of the two marks, the fictitious nature of the Starfleet logo and the lack of intent, it is hard to believe that a court would find infringement. That said, the Space Force brand defense may not be as strong as transparent aluminum – only time will tell (unless, of course, George Takei takes us on a slingshot maneuver around the Sun).
