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Restaurant companies compete over ‘Middle Child’ trademark

On Behalf of | May 13, 2024 | Intellectual Property Law |

Registering a trademark is important, but trademark rights come, first and foremost, from use in the marketplace. In most contexts, the first person or business to use a trademark is the one who has the strongest claim to having the exclusive right to use it. However, that right only goes so far.

A recent trademark dispute over a restaurant business name puts a spotlight on the exclusive rights under trademark and their limitations.

Who has the right to the name?

The case involves two restaurant groups located on opposite sides of the country. One, in Las Vegas, is preparing to open a restaurant called Middle Child. In 2022, it applied for trademark protection for the name Middle Child. The group, which already has at least two other restaurants in the Las Vegas area, also changed its business name to Middle Child Group, LLC, in 2023.

The problem is that there is another restaurant group with the name Middle Child. Philadelphia-based Middle Child, LLC, has been running a wildly popular sandwich shop since 2017. It opened a second restaurant — this one full-service — in 2021 and has announced plans to open several more restaurants in multiple states.

The Philadelphia Middle Child recently filed its own trademark application for the name “Middle Child” as well as a formal objection to the Las Vegas group’s trademark application. The Philadelphia group argues that, although its registration application may have been later than that of the Las Vegas group, it used the name in commerce first. Therefore, it says, it has common-law rights to the trademark. It has demanded that the Las Vegas group cease all use of the name “Middle Child.”

The limits of trademark rights

Generally speaking, your trademark protection lasts as long as you use the trademark, and to the extent you use it. If you use your trademark only to identify your restaurant, you can prevent other restaurants in your region from using a similar trademark. However, this does not necessarily allow you to prevent another company from using a similar trademark to identify a product or service outside the restaurant industry — for instance, you probably can’t stop a swimming pool installation business from using a name that’s similar to yours. Likewise, it may not allow you to prevent someone else from using a similar trademark to identify a restaurant on the other side of the country.

These issues can be complicated, and it’s a good idea to seek out professional advice to learn more about where you can protect your trademark.