Air-Taxi Company Gets Grounded in Federal Court for Fudging “Use in Commerce” Dates.
April 2nd, 2009It’s tempting to do, but according to the Federal Circuit, use just ain’t use in commerce until it’s a bona fide offer for sale to the actual intended purchasing public. Theoretical ability to provide the service, brochures that never got sent, and business plans showing intent are not sufficient to establish use.
Aycock Engineering, Inc., founded under a previous name in the 1940’s, was created for the purpose of offering a chartered air transportation service under the mark AIRFLITE. The business plan suggested that the company would need at least 300 air taxi operators in the U.S. to make a go of the enterprise.
In March of 1970, through brochures and letters advertising the AIRFLITE service, Aycock invited all FAA certified air taxi operators to join his AIRFLITE service. In August of 1970, Aycock filed a service mark application to register AIRFLITE, and attached as specimens of use the brochures he used to entice pilots to join his network. Ultimately, in 1974 after a lengthy prosecution fight with the examiner, Aycock’s mark was registered on the Supplemental Register for “[a]rranging for individual reservations for flights on airplanes.”
Aycock continued to market his service to the pilots who would charter his planes, but never actually marketed the service to the general public, notwithstanding his establishment of a customer toll-free number listed on the brochure and a collection of 12 pilots (far short of the 300 the business plan said were necessary to run the service). The evidence did not show that Aycock ever arranged a flight for a passenger.
In 2001, Airflite, Inc. (“Petitioner/Appellee”) filed a petition to cancel Aycock’s registration on the ground of nonuse. The TTAB found that Aycock has failed to offer the services listed in the application and on appeal, the Federal Circuit affirmed.
Although the court addressed numerous factors that led it to affirm the TTAB ruling, its primary focus was on the offer of the service listed in the application. It noted the service was simply not offered to those who would ultimately buy it – the purchasing public. It was not enough to establish a toll-free number and collect pilots to ferry people as intended. Neither was it sufficient to use the mark on the brochure that could eventually go to consumers. The fact that Aycock had never marketed the actual service to the intended consumer was sufficient to establish nonuse of the mark for those services, and subsequently, to cancel his registration.
Practice Note: Many practitioners tell their clients that printing business cards and creating stationery is sufficient to show use in commerce. Still others advise that the creation of brochures that contain a price list are sufficient to establish use. This case suggests (and this firm has always maintained) that there is a distinction between use anywhere and actual bona fide use in commerce. Use in commerce, to be above reproach, must be a bona fide offer for sale of the product for which you are claiming use to the target consumer.





















Washington D.C. is full of original works of art in the form of sculptures. One description of D.C. made by a young friend is that D.C. is a sculpture garden disguised as a town. A score of years ago, the Supreme Court issued a copyright opinion on another sculpture case, The Community for Creative NonViolence (CCNV). This opinion, Gaylord v. U.S., which issued on December 16, 2008, is consistent with CCNV.