Aycock Eng’g, Inc. v. Airflite, Inc.

560 F.3d 1350 (Fed. Cir. 2009)



For service marks, the "use in commerce" requirement is met when (1) a mark is used or displayed in the sale or advertising of services and (2) either (i) the services are rendered in commerce or (ii) the services are rendered in more than one state or in the United States and a foreign country and the person rendering those services is engaged in commerce in connection with the services. 15 U.S.C.S. § 1127. The registration of a mark that does not meet the use requirement is void ab initio. 


The holder intended to arrange charter flights by coordinating the travel plans of individual customers and providing the flights through contracts with air taxi operators, and the holder formed an entity and obtained some contracts with operators, but never arranged a flight for a customer. The holder contended that the description of services in its service mark registration as "arranging for individual reservations for flights on airplanes" was satisfied by arranging the network of operators, and that the holder used the mark in such activity. 


Did the holder satisfy the services it was supposed to render under its service mark registration by arranging the network of operators for customers? 




The Court held that the holder's use of the service mark in the preparatory stages of the development of the holder's service was insufficient to constitute use of the mark in commerce since the service was never offered to the public. The service description in the registration clearly entailed more than arranging the network of operators, and required the holder to provide a system whereby customers booked flights on airplanes. Further, although the holder formed the company, obtained toll-free telephone numbers, and contracted with the operators, the holder never gave any customer the opportunity to use the holder's service.

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