Trademarks in outer space: supporting the off-world economy

• Author: Clark W. Lackert
• Position: Shareholder, Carlton Fields, New York, USA

Since the famous “Space Race” between the United States and the former USSR in the late 1950s and 1960s, space development has evolved from exploration to commercialization. (Photo: forplayday / iStock / Getty Images Plus)

Trademarks in outer space, for example, have been debated for decades, but nothing has been done since space travel began in 1957. With multiple countries traveling in outer space now, and Earth-orbit hotels, together with moon and Mars cities, planned, the legal structure for trademarks in outer space needs to be implemented now to avoid chaos off-world.

This brief review sets out the current legal situation and principles and parameters for a working model, including how WIPO can be an important player in this process. The creation of rights in international treaties and national statutes needs to be followed by enforcement of rights via courts, contracts, arbitration, and mediation. Only trademarks will be reviewed here, but these principles can also be applied to patents, copyright and other intellectual property (IP) rights.

The current state of play: From exploration to commercialization

Outer space is already crowded. The originators of space travel, the Russian Federation and a few of its Commonwealth of Independent States allies (formerly the USSR), and the United States, ventured into space in the late 1950s and 1960s in the famous “Space Race.” These countries have now been joined by China, the European Space Agency (ESA), India, Israel, Japan, and others.

New space programs are being developed in countries such as Egypt, Indonesia, Iran, Malaysia, Pakistan, the Republic of Korea and Saudi Arabia. Moreover, we are seeing growing private sector flights into space, with companies like Virgin Galactic, SpaceX, and Blue Origin, ramping up activity in collaboration with intergovernmental efforts, such as the International Space Station (ISS) and its possible successors.

Why is 2021 different from 1957? The key shift in space development has been from government to public-private partnerships to private activity. In other words, space development has evolved from exploration to commercialization. Of course, the countries of Earth will continue to explore space, and it is generally understood that space exploration should benefit all humankind. However, we can no longer turn a blind eye to what is actually now happening off-world.

At this critical threshold of expansion of commercial activity off the Earth’s surface, the need to fill the void of legal regulation in space […] is increasing with every launch.

Existing international approaches to outer space generally

The legal status of physical property (e.g., spaceships or satellites) in outer space has been a recurring topic in United Nations’, bilateral and multilateral agreements, proclamations of nations and intergovernmental organizations, international commission initiatives, and studies by nongovernmental bodies. However, there has been no international...