TTAB Finds SLEEP HEADPHONES to be Generic for . . . . Guess What?

The Board sustained an opposition to registration of the proposed mark SLEEP HEADPHONES for "Audio speakers; Calculators; Camera flashes; Cases for smartphones; Contact lens cases; Dust masks; Earphones; Protective glasses" [HEADPHONES disclaimed] on the grounds of genericness and, in the alternative, mere descriptiveness. Applicant moved to delete "earphones" from its identification of goods, but the Board denied the motion as "too little, too late." Shenzhen Tianjian Business Co. Limited v. Shenzhen Ruiquansheng Technology Co., Ltd., Opposition No. 91273631 (May 7, 2025) [not precedential] (Opinion by Judge David K. Heasley).

"Standing": The Board found that opposer, who uses the term "sleep earphones" to sell its product on Amazon, was entitled to commence an opposition based on genericness or mere descriptiveness even if it does not own proprietary rights in the subject mark. "To put [Applicant] in possession of a right it does not have, which it might at any time decide to assert..., would, in our opinion, be damaging... since it could at least be used to harass [Opposer] into ceasing use of [the term] on pain of defending a lawsuit."

Motion to Amend: The Board denied applicant's motion to delete "earphones" from the identification of goods for several reasons. First, earphones are a type of "audio speaker" and so the identification of goods would still encompass earphones, and the proposed deletion of “earphones” would be "an exercise in futility." Second, "if Applicant’s proposed mark, SLEEP HEADPHONES, is generic or merely descriptive of any of its identified goods, whether they are earphones or audio speakers, then registration is properly refused as to the entire Class of goods." 

Applicant cannot circumvent a finding of genericness or mere descriptiveness by arguing that the term is not generic or descriptive of its other Class 9 goods. Applicant’s motion to amend is, in sum, too little, too late, and it is denied.

Genericness: The Board agreed with opposer that "Sleep Headphones" is "a compound of generic terms that does not create any additional meaning distinguishing the goods. ‘Sleep’ and ‘Headphones’ together simply describe headphones for sleeping, which is the product’s primary purpose."

Dictionary definitions, use of the term "sleep headphones" by applicant's competitors, applicant's own website and advertising materials describing the function of its headphones (for sleeping), generic use by commentators (e.g., N.Y Times Wirecutter) led the Board to find by a preponderance of the evidence that SLEEP HEADPHONES "denotes a category or class of goods, not a single source. As such, it is generic, and may not be monopolized by Applicant in the form of a registered trademark."

Mere Descriptiveness: Observing that "the generic name of a thing is in fact "the ultimate in descriptiveness," Marvin Ginn v. Fire Chiefs, 782 F.2d at 989, the Board pointed out that its finding of genericness "also implies that it is at least merely descriptive of Applicant’s goods." "The term SLEEP HEADPHONES immediately conveys the function, purpose, and use of Applicant’s earphones and audio speakers, as demonstrated by the above dictionary definitions, by Applicant’s advertising, by competitors’ use, and by commentators’ use."

We therefore find by a preponderance of the evidence that Applicant’s proposed mark is merely descriptive—indeed, highly descriptive, if not generic—of its identified goods, within the meaning of Section 2(e)(1). 15 U.S.C. § 1052(e)(1). “‘Our society is better served if ... highly descriptive or generic terms remain available for use among competitors.’ In re Water Gremlin Co., 635 F.2d 841, [844] (CCPA 1980) (footnote omitted).” Spiritline Cruises LLC v. Tour Mgmt. Servs., Inc., 2020 WL 636467, *15 (TTAB 2020).

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TTABlogger comment:The applicant should have seen this problem from the git-go when it filed the application.

Text Copyright John L. Welch 2025.