Heart Attack Sandwich Didn’t Bypass Trademark

MANHATTAN (CN) - A "medically themed" restaurant in Nevada should stop kvetching that New York's kosher Second Avenue Deli violated its trademarks for a "Heart Attack Sandwich" and "Triple Bypass Sandwich," a federal judge ruled.

In his 36-page opinion, U.S. District Judge Paul A. Engelmayer describes the spat as being between "restaurants that use provocative names to market their extravagantly caloric food."

The storied cultural landmark Second Avenue Deli is mostly known for its history with Lower Manhattan's once-bustling Yiddish theater. The sidewalk outside its original location, which has been replaced by a Chase Bank branch, still has a Yiddish Walk of Fame honoring the stars of the dialect's stage.

In 2004, the younger brother of its founder, Abe Lebewohl, said he came up with an Instant Heart Attack Sandwich made from two large latkes (potato pancakes) filled with the customer's choice of corned beef, pastrami, turkey or salami.

"Jack Lebewohl attests that he conceived of the idea for this sandwich around 2004, after a conversation with a well-known chef and a New York City Police Department detective," the order states.

Founded in 2005, Heart Attack Grill's branch in Las Vegas, Nev., on the other hand, has a reputation for sending waitresses dressed up as nurses to take down un-kosher "prescriptions" for their "patients."

Their menu includes "ButterFat" milkshakes, lard-cooked "Flatliner" fries, a Single Bypass Burger, Double Bypass Burger, and Triple Bypass Burger. Its Quadruple Bypass Burger, clocking in at 8,000 calories, packs four half-pound beef patties, eight slices of American cheese, a whole tomato and half an onion served in a bun coated with lard.

"Customers weighing in at more than 350 pounds are entitled to eat for free," the opinion states. "As of this writing, one HAG patron has suffered a heart attack while dining at the Las Vegas restaurant."

Heart Attack Grill's Arizona and Texas franchises have shuttered.

Its manager-owner Jon Basso and Delaware-based corporate operator Diet Center LLC are also parties to the dispute.

On March 29, 2011, Heart Attack Grill sent the deli a cease-and-desist letter demanding that it stopped serving its Instant Heart Attack Sandwich and Triple Bypass Sandwich.

The deli filed a lawsuit a little more than a month later asking the court to declare that neither of these sandwiches infringed with the grill's trademarks.

Judge Engelmayer tossed the trademark challenge because he doubted that people would confuse the products of the kosher deli and Nevada grill.

"The record lacks any suggestion of any overlap among the present customer bases of HAG and the Deli or any present competition of any kind," Engelmayer said, abbreviated Heart Attack Grill.

"Furthermore, there are other differences that separate the marks. HAG and the Deli pitch for vastly different customers. HAG proudly represents (even in its court papers) that its food is unhealthful. It even draws attention to the fact of a customer who had a heart attack while on the premises. Its food is served by scantily clad waitresses dressed like nurses, as part of its overall 'medical' - perhaps better cast as 'paramedic'- theme. The Deli, by contrast, is a kosher deli, which serves kosher food in the style of a traditional Manhattan deli. Its offerings, other than the Instant Heart Attack Sandwich, do not trumpet their unhealthfulness; and its marketing does not remotely resemble that of HAG's. Further, being a kosher deli, the Deli could not serve sandwiches containing both meat and cheese. This factor thus strongly favors a finding of no confusion."

Sophisticated diners could spot the differences between the two restaurants, he added.

"Although the record does not permit the Court to assess the sophistication of the patrons of the Deli and HAG, it is safe to say that even an unsophisticated customer could readily differentiate between a Manhattan kosher deli and its latke-based sandwich and a Las Vegas 'medically themed' restaurant that features gluttonous cheeseburgers," the opinion states. "Such a customer also presumably can differentiate between a restaurant bearing a 'heart attack' name and a sandwich with a similar name."

The Deli can continue promoting its Instant Heart Attack Sandwich on its menu, in and outside its restaurant and on the Internet, but only can promote the Triple Bypass Sandwich on its menu.

Engelmayer denied both parties damages for attorneys' fees, and warned them to resolve future disputes out of court.

"In the event that future quarrels arise, the Court strongly encourages the parties to eschew provocative cease-and-desist letters or precipitous lawsuits, and instead to work together to try to resolve their differences cooperatively," he wrote.

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