Another installment, unplanned but utterly unsurprising, in the Stupid Lawsuit series — see my most recent previous post. Tim Bukher takes apart the widely-reported HEART ATTACK SANDWICH and TRIPLE BYPASS BURGER decision over at his blog. Tim’s bullet points:
This is an interesting trademark dispute for several reasons:
- A Nevada-based restaurant attempted to stop a New York-based deli from using a potentially similar mark yet neither party has or seemingly intends to do business in the other’s state.
- The Court concludes that restaurants and deli are sufficiently different that a consumer can tell the difference (we do not often see courts giving consumers such props for their intelligence).
- The Court grants concurrent use.
- The Court notes that this case only came about because defendant sent plaintiff an overly aggressive cease and desist letter (thus overlawyering rears its ugly head and loses the client some of its rights).
“Interesting?” More like, you know — stupid! Not the decision, mind you, though it does essentially says “stupid” all over it in reference to the litigation ever having to happen. But yes, the fact that it happened, and that someone had to pay for it to happen — that’s just stupid.
Some interesting, non-stupid things did happen though, such as this bit:
[T]here are other differences that separate the marks. HAG and the Deli pitch for vastly different customers. HAG proudly represents (even in its court papers) that its food is unhealthful. It even draws attention to the fact of a customer who had a heart attack while on the premises. Its food is served by scantily clad waitresses dressed like nurses, as part of its overall “medical”—perhaps better cast as “paramedic”—theme. The [Second Avenue] Deli, by contrast, is a kosher deli which serves kosher food in the style of a traditional Manhattan deli. Its offerings, other than the Instant Heart Attack Sandwich, do not trumpet their unhealthfulness; and its marketing does not remotely resemble that of HAG’s. Further, being a kosher deli, the Deli could not serve sandwiches containing both meat and cheese. This factor thus strongly favors a finding of no confusion. . . .
Although the record does not permit the Court to assess the sophistication of the patrons of the Deli and HAG, it is safe to say that even an unsophisticated customer could readily differentiate between a Manhattan kosher deli and its latke-based sandwich and a Las Vegas “medically themed” restaurant that features gluttonous cheeseburgers. Such a customer also presumably can differentiate between a restaurant bearing a “heart attack” name and a sandwich with a similar name.