An iconic Manhattan deli is asking a New York federal district court to protect its right to offer high-fat, high-calorie sandwiches to its customers and to actually tout the health risks that come as a free side.
The 2nd Avenue Deli, an East Village institution serving kosher eats since 1954, filed the complaint (PDF) for declaratory judgment in response to a cease-and-desist letter from Arizona’s Heart Attack Grill, which had threatened to sue the deli for alleged infringement of the Heart Attack Grill’s trademarked name and “Triple Bypass Burger.” The deli now asks that the Southern District of New York declare that there has been no such infringement.
- The 2nd Avenue Deli offers the “Instant Heart Attack Sandwich:” two latkes (potato pancakes) serve as the bun and stacked inside is the customer’s choice of pastrami, turkey, salami, or corned beef.
- The Heart Attack Grill is a “medically-themed restaurant” in Arizona that “proudly serves unhealthy and overly calorific fare such as hamburgers, fries cooked in lard, and milkshakes,” including the Triple Bypass Burger.
- The Grill’s letter threatened suit against the Deli for alleged infringement of the Heart Attack Grill’s trademarks “Heart Attack Grill” and “Triple Bypass Burger.” (Second Avenue also plans to introduce a “Triple Bypass Sandwich” that will feature the addition of another potato pancake.)
As part of the complaint, the Deli maintains that it has sold the Instant Heart Attack Sandwich since 2004 —before the opening of Arizona’s Heart Attack Grill in late 2005, therefore making the Deli the “senior user” of any trademark in issue. The complaint also attests that the offerings at the two places are so different that there can be no likelihood of confusion—the Deli offers traditional, kosher (no dairy products are served in the establishment, because of the presence of meat) New York deli fare, while the Grill specializes in cheeseburgers and other pretty obviously non-kosher fare. In addition, the complaint highlights the establishments’ geographic separation (Arizona vs. New York) and target customer differences.
Jon Basso of the Heart Attack Grill has responded to the lawsuit via the Wall Street Journal Law Blog: “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.” [editor's note: "Unremarkable deli"? Ask a New Yorker about that one and you'll get an earful.]
While the dispute shows that our court system is alive and kicking, are its arteries becoming increasingly clogged with suits like this one?