## Facts

- Aycock Engineering, Inc. obtained a federal service-mark registration for “AIRFLITE” for arranging air-taxi transportation.
- The asserted business model was to act as an intermediary between customers and participating air-taxi operators, advertising under the AIRFLITE name and taking reservations through toll-free telephone numbers.
- Aycock Engineering pursued development steps, including forming a corporation, obtaining toll-free numbers, and attempting to recruit air-taxi operators into a network.
- The venture never became operational; Aycock Engineering did not open the AIRFLITE service to the public and never arranged a single flight.
- Airflite, Inc. petitioned the Trademark Trial and Appeal Board (TTAB) to cancel the registration, alleging lack of qualifying use of the mark for the identified services prior to registration.
- The TTAB cancelled the registration as void for failure to satisfy the Lanham Act’s “use in commerce” requirement, and Aycock Engineering appealed to the Federal Circuit.

## Issues

1. Whether “use in commerce” for a service mark is satisfied when the mark is used in advertising and preparatory business activities, but the services are never actually offered or rendered to the public.
2. Whether a service-mark registration is void when the registrant had not made qualifying use of the mark in commerce for the listed services at or before registration.

## Decision

- The Federal Circuit affirmed the TTAB’s cancellation of the registration.
- The court held that Aycock Engineering’s activities were preparatory and did not constitute “use in commerce” because the AIRFLITE services were never rendered or genuinely offered to consumers.
- The court concluded the registration was void because the statutory use requirement was not met for the identified services.

## Legal Principles

- For service marks, “use in commerce” requires both use or display of the mark in the sale or advertising of services and that the services are rendered in commerce.
- Advertising and other preparatory steps, without actual rendering of the services or a genuine public offering that allows consumers to obtain the services, do not satisfy the Lanham Act’s use requirement.
- A service-mark registration may be cancelled as void when the mark was not in qualifying use in commerce for the identified services at the relevant time.

## Conclusion

Because Aycock Engineering never offered or rendered the AIRFLITE intermediary air-taxi arrangement service to the public, its advertising and developmental efforts did not amount to “use in commerce,” and the Federal Circuit upheld cancellation of the registration as void.


Aycock Eng’g, Inc. v. Airflite, Inc., 560 F.3d 1350 (Fed. Cir. 2009)