Intellectual Property Law

Federal Judge Says Kosher Deli Can Keep 'Heart Attack' Items On Menu, Add Triple Bypass Sandwich


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A federal judge in Manhattan has sided with a New York delicatessen that filed a declaratory judgment action seeking a ruling that it could continue to offer a menu of “heart attack” themed high-calorie selections without violating the Lanham Act.

Although the Arizona-based Heart Attack Grill has trademarked both its restaurant name and certain menu items, such as its Quadruple Bypass Burger, even an unsophisticated consumer can easily distinguish between the lard-laden fries and cheeseburgers featured there and the Second Avenue Deli’s kosher offerings in a far-distant city. The deli cannot combine meat and cheese in a menu item and relies on components such as latkes and pastrami, U.S. District Judge Paul Engelmayer pointed out in his opinion (PDF).

The grill’s Quadruple Bypass Burger, the judge notes, packs an 8,000-calorie punch and is ordered at a restaurant that features provocatively dressed “nurses” taking “patient” orders and allows customers that weigh in at above 350 pounds to eat without charge. At least one customer did, in fact, suffer a heart attack while dining at the Las Vegas eatery.

Both sides proclaimed victory after the decision: The Heart Attack Grill, in a written statement, said that its trademarks remain valid nationwide. Meanwhile, an owner of the deli, which was given permission by the judge to put a Triple Bypass Sandwich on customers’ plates, said it planned to do so starting Friday and said the ruling upheld the restaurant’s position in the case, reports Reuters.

Earlier coverage:

ABAJournal.com: “Famed NY Deli Sues re Coronary-Causing Cuisine, Says Ariz Upstart Doesn’t Control High-Cal Schtick”

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