TTAB Reverses Section 2(d) Refusal of DAILY HARVEST CAFE Logo for Cafe Services: USPTO Fails to Prove Relatedness to Food Items and On-Line Services

The Board reversed a Section 2(d) refusal of the mark shown below, for "cafe and restaurant services," finding confusion unlikely with the mark DAILY HARVEST registered for various food items and for "on-line retail store services featuring pre-prepared meals, desserts and beverages." It found that the marks to be similar in sound, appearance, connotation and commercial impression," but the USPTO failed to prove that the involved goods and services are related. In re Daily Harvest Café, Serial No. 98269684 (April 2, 2026) [not precedential] (Opinion by Judge Wendy B. Cohen).

As to the services, the Examining Attorney pointed to four restaurant websites at which pre-packaged food can be ordered online [e.g., Starbucks.com]. The Board was unimpressed: "Four websites in support of the relatedness of Applicant’s restaurant and café services and Registrant’s on-line retail store services falls short of demonstrating that the relevant services are related."

As to the goods, the Board agreed with the applicant that the Office "must show something more than that similar or even identical marks are used for food products and for restaurant services." The Board has found the "something more" requirement to be met where, for example, the applicant’s mark made clear that its restaurant specialized in registrant’s type of goods; or where the record showed that a registrant’s goods were actually sold in the applicant’s restaurant; or where the mark was found to be “a very unique, strong mark."

The Examining Attorney argued that "because Registrant offers pre-packaged smoothies, soups and coffee and Applicant offers smoothies, soups and coffee at its restaurant and café, 'both parties actually sell identical goods in similar settings, that is a retail food establishment.'" The Board was again unimpressed: "the evidence in the record only suggests a general similarity between the type of food packaged by Registrant and some of the items available on the menu in Applicant’s restaurant and café."

It is commonly known that there are a large number of restaurants and cafés in the United States .... [E]vidence of only three or four restaurants selling pre-packaged foods is far from what would be considered numerous or substantial. * * * Thus, the evidence before us indicates that the degree of overlap between the sources of restaurant services and the sources of pre-packaged foods is de minimis; this is far cry from establishing the requirement of “something more” than the fact that restaurants serve food."

Finally, the Board observed, "nothing has been placed in the record upon which to base a finding that the mark DAILY HARVEST is a “very unique, strong mark."

And so, the Board reversed the refusal to register

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TTABlogger comment: I suspect that there are a whole lot of restaurants that offer pre-packaged food on-line.

Text Copyright John L. Welch 2026.