## Facts

- Cedar Point, Inc. planned to open a new marine entertainment attraction branded “OCEANA” as part of its amusement park operations.
- Months before the facility opened, Cedar Point began an extensive publicity and advertising campaign using the OCEANA mark.
- About one month before the scheduled opening, Cedar Point filed a use-based federal application to register OCEANA for “marine entertainment park services.”
- The application claimed first use as of the date advertising began, even though the park was not yet open and the services had not been provided to the public.
- The examining attorney refused registration for failure to satisfy the Lanham Act’s “use in commerce” requirement for the identified services.
- Cedar Point appealed the refusal to the Trademark Trial and Appeal Board in an ex parte proceeding.

## Issues

1. Whether pre-opening promotional activity (press releases, brochures, and advertisements) constitutes “use in commerce” sufficient to support a use-based service mark application when the underlying services have not yet been rendered.
2. Whether a service mark can be registered based on advertising of a planned service without actual public performance of the service as of the application’s filing date.

## Decision

- The TTAB affirmed the examining attorney’s refusal to register the OCEANA mark.
- The Board held that the mark was not in “use in commerce” for the recited services at the time of filing because the marine entertainment park services were not yet being rendered.
- The Board concluded that pre-opening publicity and advertising, standing alone, do not satisfy the statutory use requirement for service mark registration.

## Legal Principles

- For service marks, “use in commerce” requires both (a) use or display of the mark in the sale or advertising of services and (b) actual rendering of the services in commerce.
- Promotional activity undertaken before a business begins providing the identified services is a preparatory step and is insufficient to establish use in commerce for registration.
- Use of a mark solely in steps preliminary to establishing or launching a service does not create the use needed to support a use-based federal service mark registration.

## Conclusion

The TTAB held that a use-based service mark application is defective where the applicant has only advertised a forthcoming service but has not yet rendered the service in commerce; advertising alone does not satisfy the Lanham Act’s “use in commerce” requirement for service marks.


In re Cedar Point, Inc., 220 U.S.P.Q. 533 (T.T.A.B. 1983)