I recall once reading of a study showing that one of the major reasons why many physicians end up in malpractice lawsuits is that when a physician is confronted with a complaint from a patient, he or she often doesn't accept responsibility for a mistake and then fully apologize to the patient for having made it (an example of “not playing nice”).

In a recent, odd trademark infringement case, a federal district court noted that a declaratory judgment action had been filed only because the mark holder had sent an overly aggressive cease-and-desist letter (another example of “not playing nice”).

That defendant was a Las Vegas restaurant called—I swear that I’m not making this name up—the Heart Attack Grill (which this blog post, for the purposes of comic relief, will refer to as “the HAG”). The HAG didn’t like that a New York City delicatessen was using the marks—and I swear that I’m not making these up either—"Instant Heart Attack Sandwich" and "Triple Bypass Sandwich." Those marks could, according to the HAG, be potentially confused with its trademarks for food that this blogger frankly cannot believe anyone would ever order.

What a food-savvy judge of the U.S. District Court for the Southern District of New York couldn’t believe was that a deli could ever be confused with a restaurant—at least, not in the Big Apple. The court pointed out that the two eating establishments cater to vastly different customers. The HAG has as its slogan "Food Worth Dying For" and displays a "CAUTION—THIS ESTABLISHMENT IS HAZARDOUS TO YOUR HEALTH" sign.

In court papers, the restaurant proudly represented that its food is served by scantily clad waitresses in nurse uniforms who push patients (what the restaurant calls its diners) around in wheelchairs. The restaurant even went so far as to draw attention to a customer who recently suffered a heart attack on its premises, followed a few months later by a woman who collapsed there while eating a Double Bypass Burger (in fairness to the burger, she was also smoking cigarettes and drinking a margarita at the time). And the HAG says that it deals only in cash because of the risk that you'll die before you pay.

As for the 2nd Avenue Deli, it is a kosher one in the traditional Manhattan style, with offerings that, despite the Instant Heart Attack Sandwich at issue, do not generally trumpet unhealthfulness. Keeping to kashrut, it does not serve sandwiches with meat and cheese together. And its marketing does not even remotely resemble the HAG’s pseudo-medical theme.  

In this case, finding no likelihood of confusion and letting both parties continue doing business as always was the court’s chance to play nice, which it did, though the deli can sell and advertise its sandwiches only in Manhattan. The court noted that neither party had done nor seemingly intended to do business in the other’s state, and that even unsophisticated customers could “taste the difference” between a latke-based sandwich from a Manhattan kosher deli and a gluttonous cheeseburger from a Las Vegas restaurant.

Now tell me that after reading this story you’re not just a little hungry.