Trademarks

Preparation Is Not Performance: Aycock Engineering v. Airflite

Decades of planning an air-taxi reservation service could not satisfy the Lanham Act's use requirement, because the AIRFLITE service was never actually rendered to the public.

May 12, 2025
Small chartered aircraft parked on a regional airport tarmac
A reservation service for chartered flights existed on paper for decades but never booked a single passenger. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

In Aycock Engineering, Inc. v. Airflite, Inc., 560 F.3d 1350 (Fed. Cir. 2009), No. 2008-1154 (decided March 30, 2009), the U.S. Court of Appeals for the Federal Circuit affirmed the cancellation of a service-mark registration that had survived, unchallenged, for more than three decades. The mark was AIRFLITE; the service was a reservation clearinghouse connecting travelers with air-taxi operators; and the problem was that the service had never been performed for a single member of the public. The panel — Judges Newman and Linn, joined by District Judge O’Grady, who wrote for the court — held that advertising and preparing to launch a service is not the same as rendering it, and that the use-in-commerce requirement demands the latter. Judge Newman dissented.

At a glance

  • Case: Aycock Engineering, Inc. v. Airflite, Inc., 560 F.3d 1350 (Fed. Cir. 2009), No. 2008-1154.
  • Decided: March 30, 2009; panel of Newman, Linn, and District Judge O’Grady (opinion by Judge O’Grady; Judge Newman dissenting).
  • Mark at issue: AIRFLITE, registered on the Supplemental Register in 1974 for services later described as “arranging for individual reservations for flights on airplanes.”
  • The concept: William Aycock envisioned a central service that would let travelers book seats on chartered air-taxi flights, with Aycock’s company acting as the middleman.
  • What was missing: Aycock solicited air-taxi operators and signed agreements with a handful of them, but never opened the service to the traveling public and never arranged a single flight.
  • The holding: For a service mark, use in commerce requires that the service actually be rendered; merely advertising or preparing to offer the service does not satisfy the Lanham Act. The registration was void ab initio.
  • Disposition: The Trademark Trial and Appeal Board’s cancellation was affirmed.

A service that was always about to begin

William Aycock spent years building toward a business that, in its essential idea, anticipated the modern travel-booking intermediary. His plan was to operate a clearinghouse: a member of the public who wanted to charter a flight would contact Aycock’s operation, which would in turn coordinate with an air-taxi company to arrange the trip. To make such a system work, Aycock first needed a network of participating operators. He pursued that network, advertised the AIRFLITE concept to air-taxi companies, and entered into agreements with some of them.

But the network never reached critical mass, and the consumer-facing service never opened. By the court’s account, Aycock obtained agreements with only a small fraction of the operators he believed he needed, and he never advertised or offered the service to the general public. Most tellingly, no traveler ever used AIRFLITE to book a flight, because the service was never made available to travelers to use. The mark registered on the Supplemental Register in 1974 and was renewed in the 1990s, but the underlying service remained, throughout, a venture in preparation rather than operation.

In 2001, Airflite, Inc. petitioned to cancel the registration, contending that AEI had not used the AIRFLITE mark in commerce for the registered services before registration. The Board agreed and cancelled. The Federal Circuit affirmed.

What the statute means by “rendered”

The court anchored its analysis in the Lanham Act’s definition of “use in commerce” for services. A mark is used in commerce on services when it is used or displayed in the sale or advertising of those services and the services are rendered in commerce. The operative word for AIRFLITE was “rendered.” Aycock had advertised — to operators, at least — and had taken concrete steps toward launch. What he had not done was render the service to anyone.

The opinion drew a firm line between preparation and performance. Soliciting suppliers, signing contracts with vendors, and building the infrastructure that would one day let a service operate are activities directed at the capacity to render a service, not the rendering itself. As the court put it, the mark “must be actually used in conjunction with the services described in the application.” A service comes into being, for trademark purposes, when it is offered to and performed for the relevant consuming public — here, travelers seeking to charter flights. Until that happened, there was no service in commerce to which the AIRFLITE mark could attach.

This distinction matters because it identifies whose receipt of the service counts. Aycock’s dealings were with air-taxi operators, the suppliers on the back end of his envisioned marketplace. The registered service, however, was arranging reservations for the traveling public. Engaging the supply side is a step toward offering that service; it is not the service. The consuming public never received the benefit the registration described.

The dissent and the long unchallenged registration

Judge Newman dissented. Her disagreement centered on the construction of the service description and on the significance of Aycock’s actual business activity with air-taxi operators. In her view, the majority read the registered services too narrowly and discounted real commercial conduct that, properly understood, reflected use of the mark. The registration had stood for some thirty-five years; to her, the activities surrounding it were not the empty placeholder the majority described.

The majority was unmoved by the registration’s longevity. A registration that was void ab initio does not ripen into validity through the passage of time. If the use-in-commerce requirement was unmet at registration, the defect is foundational, and the years of unchallenged existence cannot cure it. That is a sobering feature of the doctrine: a registration can sit quietly on the register for decades and still collapse entirely when its origins are finally examined.

Open questions

  • Where exactly does preparation end and rendering begin? Aycock holds that signing up suppliers is not rendering a consumer service, but it does not map every intermediate step in service launches that involve staged rollouts.
  • How should multi-sided platforms be analyzed? Marketplaces that must build a supply side before serving consumers raise the recurring question of which side’s engagement counts as rendering the registered service.
  • Does the Supplemental Register change the analysis? AIRFLITE sat on the Supplemental Register, yet the use requirement still applied; the interplay between register type and the rendering requirement remains worth watching.
  • What is the minimum rendering that suffices? As with other use cases, the opinion establishes that none is too little without fixing a floor.

Implications

  • Build the service before you claim use. For a service mark, the registered service must actually be offered to and performed for its consuming public before a use-based filing is sound.
  • Supplier relationships are not the service. Contracting with vendors or partners on the back end does not render a consumer-facing service; identify who the registered service is for.
  • Longevity does not cure a void registration. A registration defective at inception can be cancelled years or decades later; time on the register confers no immunity.
  • Match the description to the activity. A service description that promises consumer reservations cannot be supported by activity that only assembles the supply side.
  • Consider intent-to-use for ventures still in development. A business that is genuinely pre-launch should rely on a bona fide intent-to-use basis rather than asserting use that has not yet occurred.

Frequently asked questions

Why was AIRFLITE cancelled after surviving for over thirty years? Because the registration was void from the start. Aycock never rendered the reservation service to the public before registering, so the use-in-commerce requirement was never satisfied. A void-ab-initio defect does not disappear with time, so a long-unchallenged registration can still be cancelled when the defect is raised.

Didn’t Aycock’s contracts with air-taxi operators count as use? No. Those agreements went to building the supply side of his planned marketplace. The registered service was arranging reservations for the traveling public, and that service was never offered to or performed for any traveler. Preparing to render a service is not rendering it.

What is the practical lesson for a startup that has signed up partners but not launched? Treat the venture as pre-launch. Until the service is actually performed for its end users, a use-based filing risks being void. A bona fide intent-to-use application is the appropriate route while the service is still being assembled.

Authorities and sources