TTABlog Test: Is HEELS Generic for Medicated Skin Care Cream?

The USPTO refused to register the proposed mark HEELS on the Supplemental Register, finding the term to be generic for "medicated skin care cream." Applicant Blaine Laboratories argued that the USPTO's examples of website usage "do not demonstrate genericness because they "use the term 'heel(s)' as an adjective to modify one or more nouns to describe the product." How do you think this appeal came out? In re Blaine Laboratories, Inc., Serial No. 98054433 (April 24, 2025) [not precedential] (Opinion by Judge Jessica B. Bradley).

The Board applied the two-step Marvin Ginn test in finding that, as usual, the genus is set forth by the identification of goods in the application: “medicated skin care cream." The relevant public is comprised of "ordinary consumers who purchase medicated skin care cream."

The question, then, was how the public perceives the term "heels." Examining Attorney William Verhosek submitted evidence from 30 third -party websites offering products that use the term “heel” or “heels” to refer to a category of skin care cream for heels (e.g., Almond Beauty Foot & Heels Cream” and “Cooper Pharma Cracked Heels Cream”),

The evidence shows that the relevant public uses or understands the term “heels” or “heel” to refer to a subcategory of medicated skin care cream focused on the heels of the feet, the key aspect of these goods. See In re Cordua Rests., Inc., 823 F.3d 594, 605 (Fed. Cir. 2016) (“a term is generic if the relevant public understands the term to refer to part of the claimed genus of goods or services, even if the public does not understand the term to refer to the broad genus as a whole”)

Blaine claimed that not all the third-party evidence concerned medicated skin care cream, but it failed to point out which ones were not. In any case, the Board saw no evidence of a distinction between medicated and non-medicated creams with respect to the meaning of "heels."

Blaine's attempted to distinguish between nouns and adjectives was meaningless. See In re Serial Podcast, LLC, Ser. No. 86454420, 2018 TTAB LEXIS 94, at *15 (TTAB 2018); see also, TMEP § 1209.01(c)(ii) (2024) and cases cited therein (“The expression ‘generic name for the goods or services’ is not limited to noun forms but also includes ‘generic adjectives,’ that is, adjectives that refer to a genus, species, category, or class of goods or services.”). The Board observed that the use of "heel" to modify "cream" supported a finding of genericness "because while cream may name the broad category, heel cream or heels cream names the subcategory of cream used specifically on heels."

The Board noted that Blaine's specimen of use (shown above) states that HEELS is a “foot cream” “for dry cracked heels" and Blaine's website "confirms that 'heels' are the focus for its medicated skin care cream stating that its medicated skin care cream '[e]liminates: dry hardened heels' and depicting heels with the instructions for use of its product." (see picture below).

The Board concluded that "ordinary consumers who purchase medicated skin care cream understand the term 'heels' to refer to a subcategory of medicated skin care cream directed to the heels of feet." And so, it affirmed the refusal to register on the ground that the term HEELS "is a generic designation of the identified goods."

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Text Copyright John L. Welch 2025.