Overview
Judge Engelmayer yesterday granted the Second Avenue Deli declaratory judgment that its “Instant Heart Attack Sandwich” did not violate the trademark rights of the Las Vegas restaurant Heart Attack Grill, which proudly sells (among other things) an 8,000-calorie “Quadruple Bypass Burger,” because the marks at issue were sufficiently different:
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 . . . . [I]t 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. Such a customer also presumably can differentiate between a restaurant bearing a “heart attack” name and a sandwich with a similar name.
