20 Feb The Constitutional Stakes in Thomas D. Foster v. Stewart: Why a Simple Trademark Filing Became a Supreme Court Issue… by Olayinka Oladele

The petition for certiorari in Thomas D. Foster, APC v. Stewart presents far more than a routine trademark refusal. What began as an intent to use application for the mark “US SPACE FORCE” has evolved into a case that raises serious constitutional and administrative law concerns. At its core, this dispute asks how far the government may go when denying trademark protection and whether courts may ignore constitutional questions that are properly raised by a party.

The petition outlines three principal issues: (1) The appropriate date for evaluating a false suggestion refusal, (2) The Federal Circuit’s continued deference to the USPTO after Loper Bright; and (3) The constitutional vagueness of Section 2(a)’s “false suggestion” clause. Together, these issues create a meaningful opportunity for the Supreme Court to clarify the limits of administrative discretion and reinforce the judiciary’s duty to independently interpret federal statutes.

Background of the Case

In March 2018, Thomas Foster filed an intent to use application for “US SPACE FORCE” across numerous classes of goods. At the time of filing, no such military branch existed. The phrase had only been mentioned casually in a speech by President Trump. Foster asserts that the mark was selected for a fictional and expressive purpose, inspired by science fiction and related creative works.

The USPTO refused registration under Section 2(a) of the Lanham Act, claiming that the mark falsely suggested a connection with government institutions and political figures. After Congress later created the United States Space Force in late 2019, the agency relied on developments that arose after the filing date to support the refusal. The TTAB affirmed. On appeal, the Federal Circuit affirmed again without addressing the constitutional issues that Foster had raised at every stage.

The Broader Legal Issues Raised

1. Post-Filing Government Developments Should Not Defeat a Trademark Application

Under 15 U.S.C. 1057(c), an applicant receives a constructive use date that fixes priority at the filing of the application. The petition argues that the USPTO violated this statutory protection by evaluating the mark against circumstances that arose years after filing. This creates uncertainty for brand owners who rely on constructive use dates when launching new brands.

2. The Federal Circuit’s Continued Deference Conflicts with Loper Bright

The petition contends that the Federal Circuit improperly deferred to the USPTO’s interpretation of Section 2(a) after Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), held that courts must independently interpret statutes and may not defer to agency interpretations. The Federal Circuit’s continued reliance on TTAB reasoning conflicts with this principle and raises serious APA concerns.

3. Concerns Regarding the Clarity of Section 2(a)’s “False Suggestion” Clause

The petition raises concerns that the phrase “falsely suggests a connection” lacks sufficiently clear, objective criteria. It also notes that the USPTO’s evolving rationales, influenced in part by subsequent political developments and the later creation of the Space Force, may create uncertainty for applicants. When statutory language can lead to varying outcomes based on changing contextual or political factors, it may raise issues under the First and Fifth Amendments regarding fair notice and consistent application.

4. The Constitutional Issues Were Not Addressed by the Federal Circuit

A central theme of the petition is the Federal Circuit’s pattern of avoiding constitutional questions in Lanham Act cases. This pattern was noted in In re Elster, 26 F.4th 1328 (Fed. Cir. 2022), where the court declined to reach a First Amendment challenge to the same Section 2(a) clause at issue here. The petition argues that continued avoidance deprives applicants of meaningful judicial review.

Key Takeaways for Practitioners and Brand Creators

I. Predictability in Trademark Law Is at Risk

If marks are evaluated based on post-filing events, the intent to use system becomes unpredictable and less reliable.

II. Deference to the USPTO Is No Longer the Default

After Loper Bright, administrative interpretations of the Lanham Act must be analyzed de novo by Article III courts.

III. Section 2(a) May Be Vulnerable to Constitutional Challenge

The false suggestion clause remains one of the least defined aspects of trademark law. Its vagueness, especially when expressive marks are involved, presents ongoing constitutional risk.

IV. Creative Branding Faces Greater Uncertainty

Marks that draw from political, cultural, or fictional themes may be vulnerable to shifting government judgments.

Implication of Broader Administrative Law Principles

This appeal reaches beyond trademark law. It raises the question of whether courts will honor their role in statutory interpretation after Loper Bright and whether agencies may rely on evolving facts to justify refusals.

References

* In re Elster, 26 F.4th 1328 (Fed. Cir. 2022).

* Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

Written by Olayinka E. Oladele, Attorney at KMD Law