San Diego Trademark Attorney® Blog

Heart Attack Sandwich Doesn't Die Due To Trademark Infringement

July 9, 2012

cheeseburger.jpgSan Diego - While most restaurants seem to be moving more toward healthier foods, other restaurants are going in a decidedly different direction. Look no further than the Heart Attack Grill in Las Vegas. Recently a U.S. District Judge in New York ruled that a deli there can continue to use the phrase "Instant Heart Attack Sandwich" as described on its restaurant menu despite the Las Vegas eatery's use of a similar name.

The Heart Attack Grill, an off-beat medically themed restaurant located in Las Vegas, has a menu that includes items such as "Fat Bastard Wines", "ButterFat" milkshakes and "Flatliner" fries cooked in lard. The restaurant also displays the slogan "Heart Attack Grill. Taste Worth Dying For!" and "Fight Anorexia". The servers at Heart Attack Grill are dressed in nurse and doctors uniforms and will serve a person weighing over 350 lbs. all they can eat, for free. The restaurant has received a ton of publicity for someone actually having a heart attack in the restaurant. However, despite its critics, the restaurant is using trademarks such as 'Single Bypass Burger" and 'Double Bypass Burger' which it claims a New York deli is infringing on.

On March 29, 2011 Second Avenue Deli, located in Lower Manhattan, received a cease-and-desist letter demanding that it stop serving its Instant Heart Attach Sandwich and the Triple Bypass Sandwich. The letter originated from the accusation that the deli was infringing on the trademark for 'Bypass Burgers' which is currently in use by the Heart Attack Grill. About a month after receiving the letter, the Deli filed a lawsuit in New York asking the court to rule that it was not infringing on the restaurant's trademarks.

A little more than a year later U.S. District Judge Paul A. Engelmayer described the dispute as "restaurants that use provocative names to market their extravagantly caloric food". The judge ruled that the New York deli can continue to sell its Instant Heart Attack Sandwich and promote it on the menu and on the internet. As for the Triple Bypass Sandwich however, it can only be used by the deli only on its menu. The judge also advised, "In the event that future quarrels arise, the court strongly encourages the parties to eschew provocative cease-and-desist letters or precipitous lawsuits, and instead to work together to try to resolve their differences cooperatively."

The Heart attack Grill's attorney, Darren Spielman, stated, "The Court confirms that the Heart Attack Grill will continue to have unbridled use of its trademarks throughout the entire United States" and "Heart Attack Grill will continue to enforce its intellectual property rights against those who would seek to copy or trade off the longstanding goodwill that has accrued."