News & Insight

Trade marks February 28, 2023
SPACE™…. t-minus 10 seconds for trade marks

SPACE™…. t-minus 10 seconds for trade marks

Intellectual property rights are territorial (a UK registration will protect a trade mark in the UK, a US registration will protect a trade mark in the US) and, traditionally, very much terrestrial.

But what is the position if you want to protect a trade mark being used beyond Earth’s atmosphere?

Are brands likely to ‘take-off’?

In 1969, Buzz Aldrin wore an Omega Speedmaster watch as he took his first steps as the second man to walk on the moon (Neil Armstong had left his in the lunar module).

A decade ago in 2012, Red Bull pushed at (but did not breach) the boundaries of space by sponsoring Felix Baumgartner’s high-altitude jump from 24 miles up.

Then more recently in 2018, SpaceX launched a Tesla Roadster into space atop a Falcon Heavy rocket.

But beyond advertising stunts and the sponsorship of inspirational feats, goods and services are now being provided off-world on an increasingly regular basis with that trend only likely to continue with the advent of the commercial space race driven by the private sector.

Not satisfied by having boldly taken Captain Kirk and fellow space tourists to the edge of space in 2021, Jeff Bezos’ Blue Origin (among others) is planning to have established a commercial space station by 2027 (before the International Space Station is due to retire in 2030), to be known as Orbital Reef.

Blue Origin has described Orbital Reef as a “mixed-use business park” and, with elements of a space hotel, it might trigger the first retail activity in space. Sure enough, a current US trade mark application for the mark ORBITAL REEF includes the term: “Retail store services located in space vehicles docking stations, life-supporting habitats, and satellites featuring goods …. namely, food, oxygen, water, general consumer merchandise, electronics, electrical products, and space vehicles parts”.

Demand needs supply, and off-world factories will be needed to fabricate a wide variety of goods from fuels and replacement parts for space vehicles, to food and other supplies for astronauts and hungry space tourists alike.

The benefits of ‘zero-G manufacturing’ are already being explored and will likely have applications both above but also below the atmosphere. The unique and extreme nature of the vacuum of space is hoped to spark new developments in pharmaceuticals and electronics to name but a few sectors where significant space-related R&D spending is inevitable.

Beyond a burgeoning orbital economy, NASA’s Artemis programme (now underway) includes plans to build a ‘base camp’ on the surface of the moon by the mid-2030s. One of the new lunar rovers in development may have a Toyota badge on it.

And beyond that, Mars and all manner of opportunities await. The fact that the closure of its pre-seed investment round was reported on Star Wars Day 2022 (May the 4th be with you) will have Asteroid Mining Corporation Ltd hoping that success is literally written in the stars.

Where do you draw the line?

Terrestrial IP rights will apply within the atmosphere, but where do you draw the ‘space line’?

As things stand, there is no international law defining the edge of space.

The Kármán line is an attempt to define the boundary between Earth’s atmosphere and space, but even then there is disagreement over the exact altitude.

While the military might prefer a non-specific definition of this boundary (at present nations can freely fly at very high altitudes over others without complaint), whether or not you are within the jurisdiction of Earth-based laws is perhaps of more immediate concern to those in the business of offering zero-gravity, sub-orbital flights (e.g. Virgin Galactic) who are very much operating in and around this notional line in the sand.

Are you only free to display a sponsor’s logo over a certain altitude for fear of being sued by Company B which has registered a similar logo in Australia (and by extension Australian airspace)?

Similarly, at what altitude will any future “space” law bite? The Kármán line, low earth orbit? Or perhaps will different laws apply to different territories ((a) Earth orbit, (b) the moon, (c) Mars etc).

Just a few questions that will likely require closer scrutiny in the future.

Is it really a free for all?

The 1967 Outer Space Treaty has been ratified by 105 countries and remains the main legal backbone of space exploration and exploitation over 50 years later. But the reality is that it contains vague overarching principles that seek to protect public (rather than commercial) interests, and which were drafted at a point in time when Governments had the monopoly over space tech and space activity.

That is no longer the case and, while it may never have been violated, the treaty is looking increasingly out of date.

Yes, the non-appropriation principle that the exploration of space is for the benefit of everyone is commendable, but without a more sophisticated legal framework in place dealing with, among other issues, IP rights, then innovation will be stifled and growth will be checked. Those looking to take the next ‘giant leap’ will want to know that space is a safe place for investment.

As long as 20 years ago, following United Nations and WIPO consultations, it was agreed that a consensus on, and harmonisation of, the treatment of IP rights in space would be welcome. But, notwithstanding attempts by countries like the US to plug the gaps by adapting national law (see the SPACE Act of 2015), not much has materialised since.

What about the International Space Station?

Perhaps the ISS model could be adopted in other parts of the solar system. Here, the different modules of the station are governed by the national law (and thereby e.g. the national IP laws/registrations) of the country that owns it (broadly, Articles 5 and 21 of the International Space Station Intergovernmental Agreement). Legal jurisdictions that are thousands of miles apart on earth, find themselves neighbours in space.

Many will recall seeing Canadian astronaut Chris Hadfield perform David Bowie’s 1969 hit ‘Space Oddity’ which had been recorded aboard the ISS. Reconciling the copyright position was not straightforward and ultimately resolved with the agreement of all parties. Otherwise, which country’s copyright law applied depended on the module in which the recording took place; at least it didn’t take place during a spacewalk.

Indeed, Blue Origins’ US trade mark application for ORBITAL REEF (described above) would suggest that it considers such an approach might be followed. Note that the wording used in the application arguably seeks to define its territorial scope through the specification of services by stating that the retail services will be offered in e.g. space vehicles and habitats.

However, the use of such language does not in and of itself mean that the scope of protection will extend outside the US to space; it won’t, that is unless the Orbital Reef station is to be essentially an extension of US soil, much like an overseas military base would be treated on terra firma. A better analogy still might be the position under maritime law whereby, beyond territorial seas, vessels sailing international waters must observe the laws of the country in which it is registered.

What are the alternatives?

While the ISS model might lend itself to an orbiting station, it would likely become rapidly unworkable in the context of something that is not ‘owned’, like the moon or Mars.

In the context of a fully functioning, multinational, extra-terrestrial colony, new dedicated lunar or Martian IP rights, for example, will likely be needed.

But it will surprise no-one that this would be far from straightforward and would take a lot of time, not least because the historic and altruistic values of the non-appropriation principle have yet to be reconciled with the modern commercial objectives of the Space Race 2.0.

WIPO’s ‘international trade mark’ could perhaps be replaced by, or expanded into, a ‘universal trade mark’, where applicants are able to designate new territories in space alongside existing telluric territories.

As to who will police and enforce such rights is another matter. On the one hand, the jurisdiction of existing judicial bodies could be extended. On the other, a fresh approach could be taken such as the ‘Courts of Space’ initiative which was launched in the UAE in 2021 to explore ways to resolve space-related disputes.

Ultimately, either traditional intellectual property regimes must be reimagined, or new systems created, for an age where commercial enterprise exists beyond the confines of our little blue marble.

To get your brand off the launch pad, contact then please do contact a member of our IP team.

This piece was written and researched by Tristan Morse.

All the thoughts and commentary that HLaw publishes on this website, including those set out above, are subject to the terms and conditions of use of this website.  None of the above constitutes legal advice and is not to be relied upon.  Much of the above will no doubt fall out of date and conflict with future law and practice one day.  None of the above should be relied upon.  Always seek your own independent professional advice.

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