Manhattan, NY - Judge: Kosher Deli Can Keep Its ‘Heart Attack’ Sandwich

Manhattan can have its own version — kosher, of course — of a heart attack on bread, a federal judge has ruled.

In May 2011, the Second Avenue Deli, a kosher Manhattan deli, sued the Las Vegas-based Heart Attack Grill in a dispute over the deli’s “Instant Heart Attack Sandwich” and its plans to introduce the “Triple Bypass Sandwich.”

Before filing suit, the Heart Attack Grill sent a cease-and-desist letter claiming the sandwiches — the Instant Heart Attack features two latkes filed with corned beef, pastrami, turkey of salami– violated its trademarks for its various “Bypass” burgers.

The “Quadruple Bypass Burger,” by comparison, features four half-pound beef patties, eight slices of American cheese, a whole tomato and half an onion. It weighs in at a whopping 8,000 calories.

In an opinion Friday, U.S. District Judge Paul A. Engelmayer said the deli can sell the Instant Heart Attack Sandwich at current and future restaurants in Manhattan and advertise it on its signs.

However, the deli can’t use the mark at locations outside of Manhattan and can only reference the Triple Bypass sandwich on its menu at its current restaurants, not on its signs.

The judge noted the decisions reflects terms agreed to by the parties at oral argument in May and followed months of litigation.

“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 judge said.

The Second Avenue Deli had been selling its Instant Heart Attack Sandwich since about 2004, while the Heart Attack Grill registered its trademarks in June 2005, the judge said.

Update 3:27 p.m. Darren Spielman, a lawyer for the Heart Attack Grill, said in a statement, “The Court confirms that Heart Attack Grill will continue to have unbridled use of its trademarks throughout the entire United States.”

“The Court permitted the Deli very limited in-house restaurant use of Instant Heart Attack Sandwich in Manhattan only, and denied Deli any rights to expand beyond its restaurant setting in Manhattan,” he said. “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.”

Update 12:57 p.m. Josh Lebewohl, one of the owners of the Second Avenue Deli, said, “Ultimately this is a victory for our customers.”

Mr. Lebewohl said the Triple Bypass Sandwich, which includes an extra latke, or potato pancake, layer, will make its debut at the restaurant later Friday.

Source:t Wall Street Journal (blog)