Restaurants Battle Over HEART ATTACK Marks – Is This Something to be Proud Of?

I remember when the Second Avenue Deli, a New York institution, was actually on 2nd  Avenue.  Since 2007, though, it has been on 3rd Avenue, and they are planning to open another location on 1st Avenue.  (At least that averages to 2nd Avenue.)

So the location may not be truth in advertising, but at least the restaurant names some of its menu items accurately.  It offers an INSTANT HEART ATTACK sandwich, consisting of a pile of deli meat between two potato latkes.  They also offer a TRIPLE BYPASS sandwich. 

Heart Attack Grill, located in Arizona and Dallas, has registered trademarks for HEART ATTACK GRILL and TRIPLE BYPASS BURGER (as well as DOUBLE BYPASS BURGER and SINGLE BYPASS BURGER) and other “this could kill you”-themed trademarks.  The restaurant also serves unfiltered cigarettes.  The Chandler, Arizona location is currently closed for installation of defibrillators renovations.  The corporate address is, ironically enough, in Carefree, Arizona.

Heart Attack Grill sent the Second Avenue Deli a letter threatening legal action for trademark infringement.  Fearing that Heart Attack Grill was as serious as a heart attack,  Second Avenue filed a Declaratory Judgment action seeking a declaration of non-infringement.  Second Avenue invokes the kosher defense, stating that there is no chance consumers will be confused because it is a kosher meat restaurant, that Heart Attack Grill offers “decidedly not kosher” menu items and that “anyone looking for a cheeseburger…will not find [it] at the Second Avenue Deli.”  Second Avenue also claims that its use of the killer sandwich trademarks predates the use by Heart Attack Grill. 

Of course, these sandwiches don’t really kill their customers (at least not instantly).  If they did, the defense would be that there are no consumers around to be confused.

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