A RESTAURANT TRADEMARK BATTLE HAS ERUPTED OVER ‘MIDDLE CHILD’
A trademark battle is heating up between two restaurant groups — one in Philadelphia, the other based in Las Vegas — that want to protect their right to use the restaurant name Middle Child.
The owners behind classic Las Vegas steakhouse Herbs and Rye are opening a new restaurant at 3900 Paradise Road called Middle Child. Located in the same strip mall as its sister restaurant Cleaver, the new restaurant already has a sign on the door — LED letters spelling out “Middle Child” in a wistful script. Now, the owners of a popular restaurant called Middle Child in Philadelphia have filed a complaint against them alleging “willful” trademark infringement and unfair competition.
The Las Vegas restaurant group, which, the complaint alleges, was formed as Infantry Group in 2022 before changing its name to “Middle Child Group, LLC” in 2023, has been developing Middle Child since at least September 2022 — when it filed a trademark application to register the Middle Child name. On the other side of the country, a hotshot sandwich restaurant has been operating under the name “Middle Child” since 2017. Philadelphia’s 16-seat luncheonette earned a ravenous following and rave reviews for its sandwiches like the Vietnamese-style “Phoagie” with hoisin eggplant and breakfast sandwiches filled with thick slabs of fluffy scrambled eggs. In 2021, owner Matt Cahn opened Middle Child Clubhouse about three miles away in Fishtown. The larger full-service restaurant and bar serves the brand’s sandwiches during the day and transitions to dinner and bar service in the evening.
On Monday, May 6, Middle Child, LLC — the Philadelphia group — filed a formal complaint against Middle Child Group, LLC — the Vegas team — alleging that the Las Vegas group has engaged in “willful and intentional infringement” of the Middle Child name and trademark. Although the older Middle Child in Philadelphia filed its formal trademark application later than the restaurant group opening Middle Child in Vegas, the complaint outlines that it had established common law rights to the trademark from its clear, consistent, and publicly recognized usage of the name and branding for its restaurants. The complaint states that the trademark rights for the “Middle Child” restaurant name should be “granted to the first to use a mark, and not the first to file a trademark application.”
“The issue here is consumer confusion,” Cahn told Eater Vegas on Tuesday, May 7. “That could slow me down or be a road bump towards future success and growing Middle Child.”
The complaint alleges that the Philadelphia Middle Child restaurants have already experienced “actual consumer confusion” from social media promotion surrounding Las Vegas’s forthcoming Middle Child. The Vegas team’s trademark application, filed in September 2022, has also complicated the Philadelphia group’s plans for expansion: The court filing indicates that the Philadelphia team plans to open locations in Austin, Texas, and Los Angeles, California, as well as an outpost in Philadelphia International Airport. The complaint requests that the Vegas group cease all use of the name “Middle Child,” and further seeks compensatory damages, an accounting and disgorgement of the Vegas team’s profits (meaning, if the suit is decided in favor of the Philadelphia team, the Vegas team must give up their profits unfairly gained by their use the mark), and reimbursement of its attorney fees related to the suit.
The complaint alleges that after Middle Child, LLC — the Philadelphia restaurant group, if you’re still following — sent a cease and desist letter to the Las Vegas restaurant group in January 2023, the Vegas group’s legal team responded with a proposal for an agreement in which Cahn could retain common law use of “Middle Child” for the two restaurants he currently operates in Philadelphia and any additional stores he opens within the Philadelphia metropolitan area. In this “concurrent use agreement,” the Las Vegas group would have rights to use the name in the rest of the United States, and Cahn would have to apply for any local expansion.
A representative for Middle Child Las Vegas issued a statement to Eater on May 8 regarding Middle Child Philadelphia’s complaint. “We decline to comment further on this matter. The truth will prevail, and we are confident that it will be evident to all,” it reads.
A representative previously confirmed that Nectaly Mendoza, an acclaimed bartender, is one of the owners in Vegas’s Middle Child project. On his Instagram, Mendoza announced the new restaurant, writing: “The Middle Child is the peacekeeper, the in-between, the happy medium of the family. Just because they are often overlooked doesn’t mean they don’t shine in their own right.” The brunch-focused Middle Child in Las Vegas would join Mendoza’s restaurant line-up that includes the late-night Italian joint with a lauded cocktail bar, Herbs and Rye, the Cleaver steakhouse, and the six-month-old Morning News breakfast restaurant.
In the meantime, with Cahn’s trademark application marked as “suspended,” Middle Child Philadelphia has taken the battle to its Instagram account. The accountholder posted a photo of a cease and desist letter on Friday, May 3, and stated in the caption: “We found out about [Middle Child Las Vegas] last year when we filed an application to register the trademark Middle Child. We sent them a cease and desist in January of ’23 and filed a trademark opposition in September ’23. But last week, Middle Child Las Vegas went ahead and announced their opening anyway!” A link directed Middle Child’s 47,000 followers to email the Las Vegas restaurant group and encourage it to choose another name for its brunch restaurant.
“The name is really near and dear to me,” says Cahn. “I’m the middle child. I thought it was emblematic of our ethos — somebody who fights for the little guy.” Cahn says he started the business as a lunchtime spot because it felt like lunch was the middle child between breakfast and dinner.
This story will be updated as more information becomes available.
2024-05-08T21:43:28Z dg43tfdfdgfd