IP Law Daily, TRADEMARK—TTAB: DAILY HARVEST CAFÉ restaurant not confusable with DAILY HARVEST food products, (Apr 9, 2026)

By Jonathan Anderson

The marks are similar and there is potential overlap in trade channels and consumers, but the dissimilarity of the goods and services weighs heavily against likelihood of confusion.

The Trademark Trial and Appeal Board (TTAB) reversed the Examining Attorney’s refusal to register a composite mark with the words DAILY HARVEST CAFÉ for a restaurant. The Examining Attorney argued that the mark is likely to cause confusion with the standard character mark DAILY HARVEST for various beverages, foods, and other items. However, the Board said on balance it was not persuaded of a likelihood of confusion. Despite the similarity of the marks and potential overlap in trade channels and consumers, the dissimilarity of the goods and services weighs heavily against a finding of likelihood of confusion (In re Daily Harvest Café, No. 98269684 (T.T.A.B. Apr. 2, 2026)).

Background. Applicant, Daily Harvest Café, sought registration on the principal register of a composite mark for “cafe and restaurant services” in International Class 43. The mark consists of the words DAILY HARVEST CAFE contained within an oval circle, with CAFE disclaimed. Within the mark are images of wheat, eggs, bread, and a cup of coffee. The colors white, gold, green, and purple are claimed as a feature of the mark.

The trademark Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that, when used in connection with the identified services, Applicant’s mark is likely to cause confusion, to cause mistake, or to deceive because it resembles the standard character mark DAILY HARVEST in five cited registrations, all of which are owned by Registrant, Daily Harvest, Inc. The cited registrations are for various beverages, foods, and other items in International Classes 29, 30, 32, and 35. Applicant appealed.

Analysis. The Board analyzed all probative facts in the record that are relevant to each DuPont factor for which there was evidence and argument. The Board concluded that the marks overall are similar in sound, appearance, connotation, and commercial impression, which weighs in favor of a likelihood of confusion, and that there may be some overlap in trade channels and consumers, which weighs slightly in favor of a likelihood of confusion. However, the Board said the dissimilarity of the goods and services weighs heavily against a finding of likelihood of confusion.

The marks. First, the Board found that the marks overall are similar in sound, appearance, connotation, and commercial impression, which weighs in favor of a likelihood of confusion. The identical and distinctive first words DAILY HARVEST of the Application and the entirety of the cited marks form the dominant commercial impression of the respective marks, and the commercial impression is the same. The Board noted that the identity of the dominant portion of Applicant’s mark and the cited marks is especially important in the restaurant industry because restaurants are often recommended by word of mouth and referred to by their name, so the word portion of the applicant’s mark is more likely to be remembered by the average consumer.

Similarity or dissimilarity of the goods and services. Second, the Board said it was not persuaded that Registrant’s goods and Applicant’s services are related such that there is a likelihood of confusion. The Board said this factor weighs heavily against a finding of likelihood of confusion. The Examining Attorney submitted websites from four restaurants as evidence of relatedness of services, including the service of accepting online orders. However, the Board concluded that such evidence fails to demonstrate the relatedness of the relevant services. The Board said that although likelihood of confusion has been found where similar marks are used in connection with both food products and restaurant services, there is no per se rule to this effect. Instead, the evidence must show “something more than that similar or even identical marks are used for food products and for restaurant services.” Here, however, the Board said that the Examining Attorney provided “a very limited amount of evidence” to satisfy the “something more” requirement. The Board concluded that the evidence in the record indicates the degree of overlap between the parties is de minimis and failed to establish the requirement of “something more” than the fact that restaurants serve food.

Trade channels, buyers. Third, with respect to trade channels and consumers, the Board found these factors weigh slightly in favor of a likelihood of confusion. The Board said because there are no restrictions regarding channels of trade or classes of consumers, it must presume that the identified goods and services are sold in the ordinary or normal trade channels for such goods and services and to all consumers for such goods and services. The Examining Attorney’s third-party website evidence gives a limited suggestion that Applicant’s services and Registrant’s goods may have some overlap in trade channels and consumers.

The Case is Serial No. 98269684.

Judge: Cohen, W.

Attorneys: Avraham S.Z. Cohn (Cohn Legal PLLC) for Daily Harvest Café. Anne Diamond for the USPTO.

Companies: Daily Harvest Café

Cases: Trademark USPTO