May 09, 2024
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Middle Child opened its original store front at 248 S. 11th St. in 2017, followed by Fishtown's Middle Child Clubhouse in 2021. In a federal lawsuit, the Philly sandwich spot is seeking to stop a Las Vegas restaurant from opening a new restaurant using the same name.
Middle Child, the Center City sandwich shop that's earned rave reviews since opening in 2017, has filed a trademark infringement lawsuit to block a Las Vegas restaurant group from opening a new joint that would share the same name.
The Philly brand, known for its fluffy breakfast sandwiches, operates two locations in the city. The original storefront is at 248 S. 11th St. The larger Middle Child Clubhouse opened in 2021 at 1232 N. Front St. in Fishtown. It's a full-service restaurant and bar that serves breakfast sandwiches during the day and a dinner menu at night. Last year, owner Matt Cahn and his team won the "United States of Breakfast" contest run by "Good Morning America."
The dispute stems from a Las Vegas group's plans to open a Middle Child restaurant at a strip mall where it already has another restaurant called Cleavers. The Las Vegas group, led by bartender Nectaly Mendoza, also operates the Las Vegas steakhouse Herbs and Rye.
On Wednesday, Eater Las Vegas first reported that Nectaly's group filed a trademark application for the Middle Child name in 2022 and has been developing the concept — described as a "midday" eatery — since September of that year. The Middle Child in Philadelphia filed for the trademark in January 2023 and sent the Las Vegas group a cease and desist letter.
In an Instagram post last week, Cahn's Middle Child urged the restaurant's fans to contact the Las Vegas group and discourage them from moving forward with their plans.
"We're so disappointed and our name’s on the line," the post said.
The lawsuit, filed in U.S. District Court in Las Vegas, includes some interesting details about Cahn's ambitions to expand Middle Child. The suit contends that having two restaurants share the name will create confusion in the marketplace, especially as Middle Child aims to open future locations in Los Angeles and Austin. There's also a plan to open a Middle Child at Philadelphia International Airport.
When the Las Vegas group received the cease and desist letter, they proposed to Cahn that he could retain use of the Middle Child name in the Philadelphia metro area. The Las Vegas group suggested that it would hold rights in the rest of the United States and Cahn would need to file applications for any local expansions.
The U.S. Patent and Trademark Office lists Cahn's trademark application as "suspended."
In the lawsuit in Las Vegas, the complaint contends that Philly's Middle Child established common law rights to the trademark in light of its consistent usage and public branding over the last 6 1/2 years. The suit argues that the trademark should belong to the first restaurant that used the name rather than the first to file a trademark application.
The complaint requests a ruling that the Las Vegas group stop using the Middle Child name and provide compensatory damages. That could include profits generated by the Las Vegas restaurant if it opens before the case is resolved, should it be decided in favor of the Philly restaurant.
In a statement to Eater Las Vegas, the restaurant group there declined to go into detail about the case.
"The truth will prevail, and we are confident that it will be evident to all,” the statement said.
An Instagram page for the Las Vegas Middle Child posted in late April that the business was hiring. In an earlier post, the page described its intent for the new restaurant.
"The Middle Child is the peacekeeper, the in-between, the happy medium of the family," the Las Vegas company wrote on Instagram. "Just because they’re often overlooked doesn’t mean they don’t shine in their own right. To all the Stephanie Tanners, Jan Bradys, and Chris Hemsworths out there, this one is for you."
The Philly Middle Child's Instagram post last week directly implored Mendoza to reconsider his plans. The page has nearly 48,000 followers and includes a link in the bio for people to voice their support for the "original Middle Child" by sending a pre-written message to the Las Vegas group.
"We have a lotta mutual friends and I've heard ur a stand up dude," Middle Child's post said, tagging Mendoza. "Is this really how u treat ur restaurant colleagues?"
