A trademark is abandoned if its ‘use in commerce’ has been discontinued with no intent to resume use. The intent to resume use must be formulated without the three years of non-use. Plaintiff ceased use at the end of 2002. It attempted to sell the assets of the business in ’03 and ’04, but that is not trademark use. The website was operational until 2005, but plaintiff could not establish that goods or services were provided though or in connection with the website. Plaintiff two sales efforts in 2007, one a mass mailing, but those efforts were ‘isolated and not sustained.’ It didn’t help that they appear to come about one month after Google’s first use.
Bonus evidentiary point: Plaintiff wanted to enter screenshots from 2005, obtained from an archive service. It was prepared to offer the creator of the webpage itself, but didn’t have testimony from the archive service. Held: screenshots were not properly authenticated.