Availability to Provide Services is Not Trademark Use in Commerce

What is “use in commerce” for federal trademark registration application purposes?  David Couture filed a federal trademark application for PLAYDOM on May 30, 2008.  He submitted a screen shot of his single page website to demonstrate his use of the mark in commerce.  The website stated “welcome to PlaydomInc.com. We are proud to offer writing and production services for motion picture film, television, and new media. Please feel free to contact us if you are interested: playdominc@gmail.com.”  (Opinion pdf page 2).  The website also indicated that it was “under construction.” 

The U.S. Patent and Trademark Office (PTO) registered the PLAYDOM trademark on January 31, 2009.  Services were not provided under the PLAYDOM mark until 2010.  Is offering a service, without actually providing the service, use in commerce for the purpose of meeting federal trademark registration application requirements?

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