Enough Use to Stay Airborne

By Alexander JSW Johnson

In Chicago last weekend, the Chicago Air and Water Show entertained thousands of lakeshore spectators with the aerial prowess of a series of aircraft including the Blue Angels, F-35s, supersonic jets, and other airplanes.

The thunderous sound of jets overhead could be heard throughout the city for four days: practice runs Thursday and Friday, and the full show on Saturday and Sunday.

While the Chicago Air and Water Show is not a registered U.S. trademark, it has sufficient use to support registration (other criteria of course would apply).

That’s right, a single, two-day show once a year is enough use to support a trademark registration.

Sometimes.

The U.S. requires that a trademark have “use in commerce” to register. Initially to obtain registration, the volume can be quite low—even two hats sold is enough. After a mark has already registered, however, the use in commerce necessary to avoid abandonment will usually be higher. This volume of “use” needed will depend on whether it is “bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right.” 

Sufficient use, then, to preserve trademark rights varies based on the products or services associated with the trademark.

Take the F-35 fighter jet as shown in the photo above from the Chicago Air and Water Show. Lockheed Martin owns a trademark registration for F-35, and it has sold about 1,000 jets since it first used the mark in 2009. In the course of the trade for military fighter jets, it is likely reasonable that even a handful sold per year could be bona fide use.

As for shows like the Chicago Air and Water Show itself, it would be bona fide for such an event to only provide its entertainment services once a year—that is ordinary to its course of trade. Music festivals, film award shows, and other similar events would have similar use frequency be considered sufficient.

Trademarks for more “ordinary” products and services would likely require more volume of use to maintain trademark registrations. For example, a registration for the mark CS for stereo amplifiers was cancelled for abandonment after its sales fell to single digit units per year for a stretch of five years. 

As the Federal Circuit Court of Appeals once said, the trademark laws are not intended “to provide a warehouse for unused marks.” But what use it takes to avoid abandonment will be specific to the particular products and services. 

Whether it’s a jet booming overhead, or the booming stereo system at a music festival, each trademark’s area of trade must be uniquely considered.

Alexander JSW Johnson is an attorney at Fishman Stewart with more than 10 years of extensive experience in trademark and intellectual property matters. He works in the firm’s Trademark Practice Group. He is a hobbyist photographer and took the photograph of the F-35 shown above.