Aycock Engineering, Inc. v. Airflite, Inc.

560 F.3d 1350 (2009)

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Nature of the Case

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Facts

Aycock conceived of and began work on a service involving chartering flights in the air taxi industry. Aycock intended, through his service, to allow solo passengers to arrange flights on chartered aircraft for less cost. His goal was to develop a system where he would serve his customers by acting as the middleman, or 'communication link,' between the customer and one of the air taxi service operators he contracted with to provide flights on an individual seat basis. Aycock called the service AIRFLITE. Aycock believed that in order for his service to become operational, he needed at least 300 air taxi operators in the United States to agree to participate in his air-taxi-operator network. He formed D--the corporate entity under which his service would operate. He also sought and obtained two toll-free telephone numbers that the public could use to make reservations. He eventually entered into contracts with some of those air taxi service operators. They agreed to participate in the AIRFLITE service and even paid modest initiation fees to Aycock. Aycock filed a service mark application on August 10, 1970, for the term AIRFLITE, which was a term he had included in his advertisements. Aycock never had more than twelve companies under contract. He never marketed the AIRFLITE service to the general public. Aycock never arranged for a single passenger to fly on a chartered flight. The AIRFLITE mark was registered by the USPTO on April 30, 1974. In 2001, P filed a petition for cancellation alleging, D did not use its AIRFLITE mark prior to registration in connection with the services identified in its registration. TTAB agreed and canceled the mark. D appealed.