Couture v. Playdom, Inc., __ F.3d ___ (Fed. Cir. Mar. 2, 2015) (DYK, Moore, O’Malley) (TTAB) (2 of 5 stars)
Federal Circuit affirms petition to cancel the service mark “PLAYDOM.” Appellant registered the mark with the PTO but used it only on a website that was “under construction” and encouraged visitors to contact the host about potential services. This did not constitute the required “use in commerce” necessary to support registration because the mere offering of a service, without actually providing that service, is insufficient. The statutory text defining when a mark is “used in commerce” requires that “the services are rendered.” Id. at 5 (quoting 15 U.S.C. § 1127). Moreover, other circuits have likewise required actual provision of services using the mark. There was thus no basis to register the mark, as Appellant had not actually rendered any services using it during the relevant period. Finally, Appellant could not invoke provisions that allow amending the basis of a trademark application, because those provisions apply only to attempts to amend while the application is pending, not after registration.