A New York City deli has filed a lawsuit in federal court seeking a declaration that it has not infringed the trademark of an Arizona-based restaurant by selling an “Instant Heart Attack Sandwich” and planning to sell a “Triple Bypass Sandwich.” Lebewohl v. Heart Attack Grill LLC, No. 11-3153 (S.D.N.Y., filed May 10, 2011).

According to the plaintiff, who owns the 2nd Avenue Deli, the Arizona eatery
threatened to sue the deli in a March 29, 2011, letter, claiming that the deli’s
use of these terms for its menu items violated the defendant’s Lanham Act
rights. The Heart Attack Grill has purportedly registered the trademarks “Heart
Attack Grill,” “Triple Bypass Burger” and other “Bypass” marks.

The New York deli claims that it has been selling its “Instant Heart Attack
Sandwich,” which consists of two large potato pancakes with a choice of deli
meats, and accompanied by matzo ball soup, since 2004. It also claims that it
has been serving quality kosher food to New Yorkers for almost 60 years and
has no intention of becoming a medically themed hamburger restaurant and
grill, which is how the plaintiff characterizes the defendant’s operations. In
addition to costs and attorney’s fees, the deli seeks a judgment declaring that
it has not infringed the defendant’s rights and that it did not violate any of the
defendant’s state or common law claims or rights.

According to news sources, the Heart Attack Grill features female servers wearing scanty nurses’ uniforms and sells single, double, triple, and quadruple bypass hamburgers consisting of a stack of beef patties and multiple slices of cheese; they are sold with “flatliner fries” deep fried in pure lard. The grill’s owner reportedly complained, “These are desperate times for the unimaginative, but a simple formula has emerged: 1) copy my intellectual property, 2) wait for me to object, 3) file suit against me, for exercising my right to object, in the hopes of garnering media attention for what is otherwise an unremarkable deli.” He was also quoted as saying, “There really is no story here, other than a possible exposé on the abuse of our civil court system for personal gain.” See The New York Daily News, May 10, 2011; The Wall Street Journal, May 11, 2011.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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