A small café called Daily Harvest Café applied to register its logo mark. The USPTO refused, citing five trademark registrations owned by Daily Harvest, Inc., the direct-to-consumer packaged food company. The refusal was based on likelihood of confusion under Section 2(d) of the Lanham Act.
The TTAB reversed the refusal in an April 2026 decision. The outcome turns on a doctrine that applies when a food brand and a restaurant share similar names: the "something more" requirement. While TMEP section 1207.01(a)(ii)(A) addresses it directly and even includes a lengthy quote from In re: Coors Brewing Co., there is some ambiguity to what "something more" requires. While this decision wasn't labeled precedential, it does help clarify the "something more" requirement.
The Marks and the Conflict
Daily Harvest Café filed an intent-to-use application for a composite logo mark showing the words DAILY HARVEST CAFE in stylized text within an oval design, surrounded by images of wheat, eggs, bread, and a steaming cup of coffee. CAFE was disclaimed as generic for the services.
The USPTO's examining attorney cited five registrations belonging to Daily Harvest, Inc., all covering the standard character mark DAILY HARVEST for various packaged food products: frozen fruit beverages, smoothies, soups, prepared meals, oatmeal, coffee drinks, flatbread, plant-based milks, snack foods, and an online retail store featuring pre-prepared meals. Daily Harvest, Inc. is the meal kit subscription company whose products are sold through its own website and at major retailers including Target, Kroger, and Wegmans.
The Marks Were Similar
The Board agreed with the examiner that the marks are similar. DAILY HARVEST is the dominant portion of the applicant's mark, appearing in capital letters at the top of the oval and forming the entirety of the cited marks. The addition of the generic term CAFE and the food imagery in the design element did not meaningfully distinguish the marks. If anything, the Board noted, the wheat and egg imagery reinforced the DAILY HARVEST commercial impression rather than creating a separate one.
The Board also noted the particular relevance of mark similarity in the restaurant context: restaurants are recommended by word of mouth, so the verbal portion of a mark carries more weight than it might for a product sitting on a shelf. A consumer who hears about "Daily Harvest Cafe" would likely call to mind the existing DAILY HARVEST brand.
On the similarity of marks, the first DuPont factor weighed in favor of confusion.
Where the Examiner's Case Fell Apart
The critical issue was the second DuPont factor: the similarity of the goods and services. And here the law imposes a specific requirement that the examiner did not satisfy.
As a general matter, courts and the TTAB have found likelihood of confusion where similar marks are used in connection with food products and restaurant services. But there is no automatic rule to that effect. The Federal Circuit has held that there must be "something more" than the general fact that restaurants serve food. A brand selling packaged soup at a grocery store and a restaurant serving soup on a menu are not necessarily in conflict just because they both involve soup.
The "something more" can be established in a few ways: by showing the applicant's restaurant specializes in the registrant's type of goods, by showing the registrant's goods are actually sold inside the applicant's restaurant, by demonstrating the cited mark is an unusually strong or unique mark, or through substantial third-party evidence showing that food brands and restaurant businesses commonly operate under the same mark.
The examiner's evidence on this point consisted of four websites: Amy's Drive Thru, Bob Evans, Panera, and Starbucks. These were offered to show that some restaurants also sell pre-packaged food products. The Board found this insufficient. Four examples, the Board held, do not constitute the kind of substantial evidence needed to show that the overlap between packaged food brands and restaurant services is common enough to support a likelihood of confusion finding. The Federal Circuit had previously applied the same reasoning to reject thin evidence of relatedness between restaurants and beer in the Coors Brewing case.
The examiner also pointed to the fact that both parties happen to offer smoothies, soups, and coffee, arguing they are "selling identical goods in similar settings." The Board rejected that framing too. Daily Harvest, Inc. sells packaged goods for consumers to prepare at home. Daily Harvest Café serves food at a café counter. Overlap in the type of food involved does not establish that the sources of those goods and services are related in the way the confusion analysis requires.
Finally, nothing in the record supported a finding that DAILY HARVEST is an especially strong or unique mark that deserves an unusually wide zone of protection. Without that finding, the narrow category of cases involving highly distinctive marks did not apply.
Trade Channels
The Board found the trade channel and consumer class factors weighed slightly in favor of confusion, because neither the application nor the registrations contained restrictions on channels of trade. Under trademark law, when an identification of goods or services does not specify a particular trade channel, the analysis assumes the goods and services travel through all normal channels to all normal consumers. Without a narrowing identification, Daily Harvest Café could not argue that its café customers are categorically different from Daily Harvest, Inc.'s grocery shoppers.
The slight weight given to trade channels, however, was not enough to overcome the heavy weight against confusion on the goods and services factor.
The Result
On balance, the Board reversed the refusal. The similarity of the marks created a genuine concern, but the examiner did not produce sufficient evidence to establish that packaged food products and café services are related goods and services for purposes of the likelihood of confusion analysis. The application proceeds.
What This Case Demonstrates
The "something more" requirement exists for a practical reason. Food as a category is enormous. If every packaged food brand could block every restaurant from using a similar name (and vice versa) simply because both involve food, the trademark register would impose impossible constraints on the restaurant and food industry. The law requires a more specific showing of relatedness before a conflict is established.
For applicants in the food and beverage space, this case is a useful reminder that a Section 2(d) refusal citing a restaurant registration (and vice versa) is not necessarily a dead end. The examiner has to do more than point to the fact that both parties are in the food business. If the evidence of relatedness is thin, that argument is worth making on appeal.
It is also worth noting what the Board left open. The marks were found similar. Had the examiner submitted more substantial evidence of overlap between packaged food brands and restaurant operators, the outcome could have been different. The reversal here was about the quality of the evidence, not a broad holding that food products and restaurant services can never conflict.
Questions about a likelihood of confusion refusal or how to respond to an office action? Book a free consultation with Five Dogs Law.
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