IP in Outer Space: The Next Frontier
Published: December 8, 2021
Clark W. Lackert Carlton Fields New York, New York, USA Brand Restrictions Committee—Communications Subcommittee
Intellectual property (IP) is not currently protected in outer space, despite all the recent attention given to civilian space travel, such as William “Captain Kirk” Shatner’s journey to space at age 90 and the ambitious plans—among those in both the private and public sectors—to commercialize and colonize outer space.
Humans have been in space since 1961, but nothing has been done to create a legal infrastructure to protect IP in this legal vacuum. What is the current state of play, and what are some suggested solutions to remedy this major “black hole” in space? Addressing this question is inevitable in the 21st century, and the question we must ask is not if but when it will happen.
What Is Outer Space?
The internationally recognized demarcation line between Earth and outer space is the Kármán Line, which is set at 100 kilometers (62 miles) above the Earth’s sea level and is named for the famous Hungarian-American physicist, Dr. Theodor Kármán. Further refinements are low Earth orbit (LEO), which is relatively close to the Earth’s surface and can extend out as far as 2,000 kilometers (for example, the International Space Station (ISS) is in LEO at 420 kilometers above sea level); high Earth orbit (HEO), which can extend to approximately 35,000 kilometers (where many satellites are) and is still within Earth’s gravitational pull; and of course, neighboring planets and moons.
Why Do We Need IP Protection in Outer Space?
Many have questioned why we need a rule of law in space, since such regulations may hamper the exploration and development of off-world venues. In fact, the United Nations Outer Space Treaty of 1967 states that outer space should be the “province of all mankind.”
Even a de minimis legal infrastructure for outer space will enhance it as a safe place for exploration and investment.
However, even a de minimis legal infrastructure for outer space will enhance it as a safe place for exploration and investment. Although this issue is critical for all types of IP, the following comments will focus on trademarks.
The Current Landscape
In general, the existing space treaties address tangible property like satellites and general exploration protocols, not intangible property such as trademarks. In Article 21 of the 1998 International Space Station Intergovernmental Agreement (ISS Agreement)—a space treaty that does mention IP—IP is intended to mean patents only, and does not include other forms of IP, such as trademarks and copyrights.
One obvious path is to create a new treaty specifically for IP, similar to Article 21 of the ISS Agreement, or to amend current treaties to include trademarks off-world. Preparing a treaty and obtaining consensus and ratification could take decades, rather than years. Given that some commentators and industrialists envision an orbital commercial center by 2030, a city on the Moon by 2040, and a city on Mars by 2050, we would need to start now in earnest to finalize such a treaty.
A new treaty could fully develop the exact scope of protection for trademarks and other IP, as well as provide enforcement mechanisms, such as court or arbitration panel review (maybe virtually). The negotiations would probably lag far behind commercial reality in space, but there is no reason why we cannot start drafting such a treaty now. It would need to address the fundamental issues of (1) how rights are obtained, and (2) how rights are enforced, such as:
- Which types of IP would be protected?
- How would such IP be protected (registration, notification, deposit, etc.)?
- Where would such a register and IP office be created (for example, at the World Intellectual Property Organization (WIPO))?
- What would be the conditions for protection, such as home country rights?
- Would trademark applications be examined on absolute and/or relative grounds?
- Would the international Nice Classification system be used?
- Would there be trademark opposition and cancellation proceedings?
- Would there be trademark renewals?
Further practical questions arise when current trademark trends are considered. There are now more than 58 million active trademark registrations, and 11 million applications filed each year worldwide, according to WIPO. At this rate, how would any trademark applicant be able to clear a trademark for such a vast territory as outer space? Would such clearance need the review of current trademark rights in nearly 200 countries? Would there be a sunrise pre-registration period, or would there be a clean slate, prompting a new gold rush for outer space trademarks like what happened with domain names?
Any new treaty would also have to address how to extend current national/regional rights to outer space, whether there would be common law trademark use rights in outer space or only registration rights, and how other laws, such as unfair competition, would apply. Other issues to hammer out would include deadlines, length of agreements, and other IP-related time concerns.
One obvious path is to create a new treaty specifically for intellectual property, similar to the IP sections of the ISS Agreement, or else to amend current treaties to include trademarks off-world.
In addition, the territory and jurisdiction of outer space would need to be defined. Attention would need to be given to how rights would be enforced on Earth—for instance, through litigation or a trademark office, or in some newly created trademark authority (similar to ICANN for domain names), which would adjudicate and enforce trademark or other IP rights either virtually or otherwise. Would Earth-based arbitration platforms (such as the International Court of Air and Space Arbitration in Paris, France) be available and/or would the Permanent Court of Arbitration Space Rules (2011) in The Hague be used?
Finally, would there be a mechanism for expanding coverage as new areas of space are settled?
If it would take too long to develop a global consensus and initiative for a new treaty, steps could be undertaken to amend current IP treaties, such as the Patent Cooperation Treaty, Madrid Protocol, and/or Berne Convention, to extend to outer space. It may even be possible to extend the current space treaties to add an IP clause, such as “property” to include IP. This extension would need to address many of the issues listed above.
One route to expand trademark registration protection into space would be to use the current Madrid Protocol, which has 110 members covering 126 countries. A new protocol could be added to the treaty (which would need to amend the “accession” process set out in Article 14, either directly or through a national member, to allow these areas to become “jurisdictions”) to expand protection to LEO, the Moon, and Mars, or any zones or subdivisions thereof, which each member could either accept or reject.
Another way to extend the Madrid Protocol would be to have Earth members state that their protection extends off-world (for example, India would declare that its rights extend to an orbiting Indian hotel). A clear distinction should be made between whether a registration can be extended to these areas and whether the registration can be enforced there. Although there is a common argument that without enforcement there is no right, enforcement will come eventually, whether on Earth, in a virtual medium as is done with the Uniform Domain-Name Dispute-Resolution Policy for domain names, or in evolving planetary legal systems.
National Laws/Law of the Sea
We should not forget the extra-territorial possibilities of Earth-based national laws. For example, the United States was first to codify its own outer space IP legislation in the form of Section 105, Title 35 of the U.S. Code, the Patents in Space Act of 1990. The statute states that any invention made, used, or sold in outer space on a U.S. space object or component thereof will be considered made, used, or sold within the United States, subject to international agreements.
Another approach is to start inserting LEO, the Moon, and/or Mars as part of a “territory” to be protected, for example, in a trademark license.
U.S. legislators conceived authority for Section 105 based on existing so-called flag laws that permit U.S. jurisdiction to govern activities that take place aboard U.S.-flagged ships while they are in international waters (for example, granted under the UN Convention on the Law of the Sea, 1982). This approach could be used by other countries and could expand IP protection for trademarks and other IP rights to outer space.
Contracts/Private International Law
Another approach is to start inserting LEO, the Moon, and/or Mars as part of a “territory” to be protected, such as in a trademark license. Although there is no legal infrastructure or enforcement system yet in place, there will be at some point. In any event, claims for outer space rights will give notice to the public and at least draw a line in the sand for future discussion. They may also be useful in listing corporate assets on the balance sheet for a merger or acquisition, or for a security interest in a banking institution.
Of primary importance is that the parties in the contract agree to the choice of law and jurisdiction to interpret the contract in case of breach, or even binding arbitration—whether in a physical location on the planet or in a virtual medium.
As we enter the Space Race 2.0 of the New Roaring 20s, we will need to establish at least a rudimentary trademark framework for LEO, the Moon, and Mars. Such an infrastructure could expand current Earth-based legal jurisdiction, use the existing Madrid Protocol, or create a new treaty to regulate IP off-world to deal with this important issue. National laws could also be used to claim extraterritorial rights.
Certainly, all nations stand to benefit from balanced, well-organized mechanisms for the protection and enforcement of IP rights in outer space which will foster, not hinder, humankind’s historic journey off their home world.
Although every effort has been made to verify the accuracy of this article, readers are urged to check independently on matters of specific concern or interest.
© 2021 International Trademark Association
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