Last year, the Second Avenue Deli received a letter from the Heart Attack Grill demanding that it stop selling the Instant Heart Attack Sandwich, which is a double-deck sandwich made with latkes—potato pancakes. The Grill claimed that the name of the Sandwich was too similar to their trademarks. The Grill threatened to sue. Rather than to submit to this bullying, the Deli retained our firm to protect its trademark rights. We filed a lawsuit in the Southern District of New York seeking a declaration that the Deli was not infringing the Grill’s trademarks.
Today, Judge Paul A. Engelmayer issued an Opinion and Order that allowed the Deli to continue using the “Instant Heart Attack Sandwich” in Manhattan. The Court also expressly left the door open for the Deli to seek further rights before the United States Patent and Trademark Office. Additionally, the Deli was allowed to start serving the “Triple Bypass Sandwich,” which is a triple-decker also made with potato latkes. Last, but not least, the Court found that the Deli was a “longstanding New York institution” that serves “iconic dishes and food items”—certainly you’re doing something right when a federal court recognizes that your restaurant is special.
William Chuang was lead counsel for the Second Avenue Deli in this case, Lebewohl et al. v. Heart Attack Grill, et al., 11-cv-3153 (PAE)(JCF).