Feb 22

Feb 22 Trade Dressing up for Outer Space Exploration

Modern Spacesuit (Courtesy of NASA )

“Suit up!”

— Barney Stinson in How I Met Your Mother

This year’s Superbowl had quite the pathbreaking commercial: an invitation for the first ever all-civilian space mission by Inspiration4. With new launch operators coming online—whether it’s for NASA, space tourism, or general operations—we are now on the precipice of a new era for Outer Space travel.

As this new age is filled with a panoply of launch options, an essential accessory for space travel, the spacesuit, is also evolving with the times. While these modern spacesuits will of course have the necessary functional protections, there is an eye toward their aesthetic appeal as well. With the spacesuit likely becoming a harbinger for a new era of “Outer Space fashion,” the legal protection needed for this article might evolve from trade secret to a more nuanced form of intellectual property protection: trade dress.

Hence, I thought it is high time for an overview piece about these new spacesuits. I will start by noting spacesuit’s origin and history. Then, I will walk through some of the latest designs that were introduced, including ones related to: (1) Boeing’s Starliner Program, (2) NASA’s Artemis Project, (3) SpaceX’s Dragon capsule, and (4) Virgin Galactic’s VSS initiative. Finally, I will conclude with a brief discussion on how the legal doctrine of trade dress could play a more prominent role in the legal protection of these spacesuits’ unique designs.

Spacesuit’s Origin and History

Spacesuits can trace their origins to pressurized suits designed for humans to withstand extreme conditions. As you get higher in altitude, atmospheric pressure, air density, availability of oxygen, and temperature all decrease. In this environment, pilots and passengers will encounter many physiological risks such as hypoxia (the reduction of oxygen in the blood), decompression sickness—aka “the bends” (nitrogen not dissolving and forming bubbles inside the body), as well as the dangers associated with internal fluids boiling at normal body temperature. Pressurized suits, or high altitude suits, are designed to combat these ill effects by providing additional pressure and adequate oxygen supply.

In the vacuum of Outer Space, a pressurized suit becomes even more important. This suit must be able to (1) ensure that stable pressure is maintained for the occupant in the event of an emergency, (2) work with or function as a closed air system that can both supply oxygen and eliminate carbon dioxide, and (3) assist in providing ambient temperature for human survival. With these additional functionalities, the pressurized suit becomes a spacesuit when it’s used in Outer Space. As humans took their first steps outside of a spacecraft, the spacesuit was further designed to ensure that it can provide its explorer with shielding against Outer Space radiation as well as capable of essentially functioning as a survival structure for the wearer.

Until the very recent past, manned Outer Space missions have been entirely in the provenance of governmental organizations. Hence, the nearly 60-year history of functioning spacesuits is filled with designs from the three space agencies that have built and launched their own crewed spacecrafts: Russia’s Roscosmos, America’s NASA, and China’s CNSA. On April 12, 1961, Yuri Gargarin worn the first functioning spacesuit into Outer Space. Named Skafandr Kosmicheskiy # 1 (SK-1) and manufactured by NPP Zvezda, this bright orange spacesuit had a fully-attached visored-helmet and life-support functionalities via its spacecraft connectors. Meanwhile, the first fully functioning American spacesuit was designed for the Mercury Project. Based on the Navy Mark IV pressure suit, the Mercury spacesuit was made by B.F. Goodrich Company and was first worn into Outer Space by Alan Shepard on May 5, 1961. Finally, for China’s maiden manned voyage into Outer Space, a modified version of a Russian-designed Sokol-KV2 suit was used. This Chinese spacesuit made its functional debut on October 15, 2003 when Yang Liwei became the first Chinese national to orbit Earth.

While all of these spacesuits were designed for intravehicular activity (IVA), as Outer Space exploration progressed, spacesuits that can be used for extravehicular activity (EVA) as well as both intra- and extravehicular activity (IEVA) were all introduced. Historic EVA spacesuits include the Berkut, Yastreb, Gemini G4C, Apollo/Skylab A7L, and Haiying. Currently, for EVA activities, astronauts put on the Extravehicular Mobility Unit, cosmonauts don on the Orlan, and taikonauts rely on the Feitian.

The New Generation of Space Suits

With the rise of commercial launch operators—each with their own spacecraft—and space agencies looking to explore beyond Low-Earth Orbit once again, new spacesuits are being designed and introduced to fulfill these purposes. Within the last few years, new suit designs have come from four entities: Boeing, NASA, SpaceX, and Virgin Galactic.

The IVA Boeing Blue Spacesuit

As a participant in NASA’s Commercial Crew Program, Boeing came up with a new spacesuit that is designed to function with its Starliner capsule. Named “Boeing Blue,” the spacesuit with a blue color scheme is a homage to earlier blue spacesuits. Designed by David Clark Company with technical input made by veteran astronaut Chris Ferguson, the fully pressurized spacesuit will be custom-fitted to each astronaut and will be worn during launch, ascent, and re-entry. Instead of the 30 pounds that come with the traditional Space Shuttle spacesuit, the Boeing Blue only weighs about 20 pounds.

The Boeing Blue is designed solely for IVA and is used for an emergency. In the event of a loss of cabin pressure, this spacesuit should keep the astronaut safe in a pressurized environment until the danger has passed. Designed for the 21st century, the spacesuit includes touch-screen capable gloves, mobility joints that encourage ease of movements, and can keep the astronaut comfortable without an external cooling device. The helmet is also already partially attached to the suit and is fully closed using zippers rather than latches. The ingress and egress valves are located near the abdomen of the suit for ease of access. The spacesuit also comes with some stylish kicks designed jointly between Reebok and the David Clark Company.

NASA’s Artemis Spacesuits

As part of Project Artemis, NASA also introduced a new EVA spacesuit that will take the next man and the first woman to the surface of the Moon as well as an IVA spacesuit for that trip from Earth. Both designs have many high-tech features that will vastly improve the astronaut’s experience getting to and working on the Moon since humans last departed our natural satellite more than 48 years ago.

The IVA spacesuit, known as the Orion Crew Survival System (OCSS) suit, will be worn during take-off and landing, helping to keep the astronaut safe in the event of an emergency. In fact, an astronaut can survive inside the fully-pressurized OCSS spacesuit for six days. Bright orange, the OCSS looks very much like its predecessor, the Space Shuttle Advanced Crew Escape Suit—more commonly known as the “pumpkin suit.” However, in terms of functionalities, the OCSS is much more advanced. This spacesuit is custom-fitted to each astronaut and has gloves that are more durable and touch-screen capable when compared to its predecessor. The boots are also designed to be more comfortable and protective against fires. The suit has thermal protection with a liquid cooling system built-in. However, the OCSS is designed specifically for the Orion space capsule, whose fate is tied to that of the SLS Program. If the SLS Program is cancelled, it’s very likely that the OCSS would become abandoned as well. Hence, while the OCSS is a worthy successor to the pumpkin suit, there is a chance that it will never be used in an operational mission.

The Artemis program also introduced a new EVA spacesuit called the Exploration Extravehicular Mobility Unit, xEMU for short. The xEMU design incorporates first-hand knowledge gained from Project Apollo as well as the latest advancements in technology. The suit will be more dust-tolerant than prior spacesuits to prevent the glass-like shards of lunar soil from penetrating and disrupting life-support systems. Able to modulate temperatures between minus 250 degrees Fahrenheit to plus 250 degrees Fahrenheit, the xEMU is designed to be fault-tolerant by containing duplicates for much of its primary systems. The backpack attached to the xEMU, the Portable Life Support System, is the brain and the heart of the spacesuit: powering the xEMU, filtering the wearer’s air, regulating the internal temperature, and monitoring the spacesuit’s status.

Through advancements in material science and inclusion of more joint bearings, Artemis astronauts in the xEMU will be able to better navigate the lunar terrain than their Apollo counterparts; mobility is enhanced through the inclusion of joint bearings in (i) the shoulder element that allow for full rotation of the arm, (ii) the hip element that allows for rotational movements, and (iii) the knee element that allows for increased bending. Each Artemis astronaut will be 3D-scanned so that a custom-fit xEMU can be manufactured according to his/her specifications. This allows the spacesuit to fit “1st percentile female to 99th percentile male.” The wearer will climb into the xEMU through a hatch on the back of the suit, ensuring a snug fit. Fully configurable with interchangeable parts, astronauts can customize the suit to fit a specific mission profile or upgrade the suit for their needs.

SpaceX’s IVA Dragon Spacesuit

The SpaceX Dragon capsule spacesuit was designed by the legendary José Fernández; a superhero costume creator, he had a hand in the designs for movies such as Black Panther, Spider-Man, Captain America, Batman, and more. While most of the technical details are kept proprietary and considered SpaceX’s trade secrets, some features can be gleaned from the appearance of the sleek almost all-white spacesuit. Like other modern spacesuits, each SpaceX suit is specifically tailored to its wearer. Designed as a single piece—with the helmet and boots all firmly attached (with only the touch-screen capable gloves detachable), the astronaut would don the spacesuit in through the zippable in-seams on each legside and across the crotch. The helmet, with a moveable visor, is made of acrylonitrile butadiene styrene, a lightweight but durable thermoplastic. This spacesuit is essentially a component of the Crew Dragon cabin with connectors located in the thigh area that can sync up with the capsule’s life support systems. Designed with flame-resistant materials, the suit is made up of Teflon and Nomex.

Of the modern spacesuits described, SpaceX’s spacesuit is the only one that is currently in operational use. The spacesuit made its maiden flight in May of 2020. With ringing “five-star” endorsements from former Space Shuttle astronauts, Doug Hurley and Bob Behnken, who had experienced the difficulties of the pumpkin suit first-hand, the SpaceX spacesuit seems to have a bright future ahead of it.

Virgin Galactic’s IVA Spacesuits

Collaborating with Under Armour, Virgin Galactic designed two types of spacesuits: one for its pilots and another for its passengers. It is worth noting that there is a debate whether Virgin Galactic’s spacewear can be considered “spacesuits” because they operate unpressurized and without helmets. This adds to the controversy of whether its spaceflights actually crossed the demarcation for Outer Space.

Looking like a flightsuit, the pilot corps’ spacesuit is almost completely royal blue with splashes of black, which represents the theme that the “destination of each flight is the black sky of space.” Custom-designed for each pilot, the spacesuit weighs just over one kilogram or 2.2 pounds and is made up of temperature-modulating knitted fabrics. Each pilot’s name and the Virgin Galactic pilot wings emblem are embroidered onto the suit. The spacesuit also comes with black combat-boot style shoes that are also designed by Under Armour.

Meanwhile, Virgin Galactic’s passengers will wear a spacesuit very similar to that of pilots’. These spacesuits are sans helmets as well because Virgin Galactic believes that the “cabin can serve as the helmet” and this equipment would distract from the space tourism purpose of the flight. The overall royal blue color scheme is the same as the pilot’s spacesuit but the passenger’s has splashes of gold rather than black. Custom-fitted as well, each spacesuit will include the passenger’s national flag along with their names. Each of these spacesuits should weigh about 2.5 kilograms or 5.5 pounds with built-in cushioning that will relieve pressure from the seat harness.

Trade Dressing Spacesuits

While modern spacesuits are of course made to provide functional protection against the extreme hazards of Outer Space, they are slowly becoming a fashion statement as well. With new spacesuits being designed with an aesthetic appeal in mind, other forms of intellectual property protection, apart from trade secret, will likely become a necessity. In this arena, much like fashion grounded on Earth, trade dress might become a new form of legal protection relevant for modern spacesuit designs.

In simple terms, trade dress is a type of trademark that offers its owner legal protection for the design (shape, look, color, size, and etc.) of a specific article—usually clothing. While it is a difficult form of intellectual property right to obtain, in the United States, trade dress protection generally boils down to satisfying two elements: (i) whether the design is distinctive and (ii) whether the design is non-functional.

A design is distinctive if it immediately allows individuals to think of the brand it represents. This can either be proven through inherent distinctiveness or acquired distinctiveness. While recent case law has made inherent distinctiveness harder to prove, a design can obtain acquired distinctiveness through evidence of length of use, results of recognition surveys, advertisements, unsolicited media, and other evidence that ties the design to a company. Because we are still in the nascency of spacesuit designs, it’s likely that each of the new spacesuits discussed can obtain acquired distinctiveness because of the lack of variations and choices; when each of these spacesuits was publicly introduced, each had its own moment of fame with comprehensive media focus. This will likely have enabled everyday consumers to tie a particular spacesuit to a specific company.

But, even if a design checks off the distinctiveness factor, it also needs to pass the functionality test. Trade dress can only protect design elements that are non-functional. A design is considered functional if it materially affects the use, quality, cost, or purpose of the article. Hence, NASA’s bright orange color for its spacesuits likely won’t qualify for trade dress protection because there is a functional purpose behind the color scheme: to better locate an astronaut in blue waters. But, Boeing, SpaceX, and Virgin Galactic each should be able to pass muster on this test for the color of their spacesuits. For Boeing and Virgin Galactic, you can hardly make the argument that a blue spacesuit is easily identifiable in the ocean. It’s more likely that the blue color scheme is part of a design that represents the company’s Outer Space vision. While for SpaceX, its spacesuit’s white color scheme is likely intended to match the white interior of its Dragon capsule—this nonfunctional argument is also helped by the fact that it is an IVA suit—hence, white color’s beneficial sunlight reflection ability does not really come into play.

If they can pass the test on all elements of their designs, these new commercial spacesuits would likely be able to qualify for trade dress protection. This will provide legal protection for the unique style of each spacesuit, enhancing each company’s visibility and opportunities as customers could potentially pick and choose their launch vehicle based on how “cool” they might look in a specific spacesuit. With the rise of commercial crew and space tourism, we are advancing toward a future in which public release of new and refreshed spacesuit designs will be a common occurrence. As spacesuits become a fashion statement in Outer Space, intellectual property protection for popular designs will become a valuable asset. Hence, when this era officially takes off, trade dress law might become an important type of legal protection for spacesuit designers trying to claim fame that is out of this world.