by Zachary Wadlé

The Heart Attack Grill in Chandler, Arizona ( is unabashedly unhealthful. The morbidly titled restaurant proclaims its food has “a taste worth dying for,” and offers to feed all patrons 350 pounds and over for free. The menu features single through quadruple ”bypass burgers” (actual quadruple bypass burger pictured above), "flatliner fries" deep fried in pure lard, unfiltered “Lucky Strike” cigarettes, and Jolt Cola, amongst other fulsome fare. 

Despite the paternalistic efforts of state governments like California and New York to eliminate our consumption of trans-fat laden food (see, a strong demand apparently exists for such corpulent cuisine. The Heart Stoppers Sports Grill recently opened in Delray Beach, Florida ( with items such as the “Heart Stopper 3 Pound Killer Burger” and “Chili Chest Pain Fries” on the menu. Like the Heart Attack Grill, The Heart Stoppers Sports Grill will also feed all patrons 350 pounds and over for free. 

There’s just one problem…according to The Heart Attack Grill, there isn’t enough room in the kitchen for The Heart Stoppers Grill. The Heart Attack Grill has filed a federal lawsuit against the owners of the Heart Stoppers Sports Grill, accusing them of stealing the idea for a heart-attack-inducing menu. The complaint outlines 30 ways Heart Stoppers is similar, including signs with EKG heart monitors on them, waitresses dressed as nurses and offers of free food to patrons weighing more than 350 pounds. According to the Heat Attack Grill’s lawyer, "Heart Attack Grill is the originator of the medically themed hamburger grill and restaurant.” Based upon the allegedly unique nature of The Heart Attack Grill’s restaurant concept, the complaint filed by The Heart Attack Grill asserts, among other things, claims of infringement by Heart Stoppers of The Heart Attack Grill’s unique trade dress. This begs the question, what is “trade dress,” and how can it be protected?

What is Trade Dress?

In general terms, trade dress is the design and appearance of a product together with the elements making up the overall image that serves to identify the product presented to the consumer. Yankee Candle Co., Inc. v. Bridgewater Candle Co., LLC, 259 F.3d 25, 38 (1st Cir. 2001). In other words, trade dress is a product’s "look and feel." Trade dress may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765 n.1 (1992). Trade dress is a broad concept, encompassing both product packaging and product design/configurations. Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209-10 (2000). Book and magazine covers; the appearance of a teddy bear toy; a Rubik’s cube puzzle, the appearance of a lamp; the overall design of a sports shoe; the appearance of a video game console; a combination of features of a folding table, the appearance of a water meter; the decor, menu and style of a restaurant, and the distinctive performance style of a rock music group are among the things courts have held to constitute protectable trade dress. 1 J.T. McCarthy, Trademarks and Unfair Competition § 8.01[2] at 8-8 to -9 (3rd ed. 1996) (citing cases). Trade dress is not all encompassing, however. A marketing approach or theme, for example, generally does not constitute trade dress. See Woodsmith Pub. Co. v. Meredith, 904 F.2d 1244, 1248 (8th Cir. 1990); Revlon, Inc. v. Jerell, Inc., 713 F. Supp. 93, 97 (S.D.N.Y. 1989). Nor does the method or style of doing business.  Prufrock Ltd. v. Lasater, 781 F.2d 129, 131-32 (8th Cir. 1986).

What Trade Dress is Protectable?

It is well established that trade dress can be protected under federal law. Traffix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 28 (2001). See 15 U.S.C. § 1125(a).For trade dress to be protected, however, it must be both non-functional and distinctive. Wal-Mart Stores, Inc., 529 U.S. at 210; Two Pesos, 505 U.S. at 775.In general terms, a product feature is functional, and not protectable, "if it is essential tothe use or purpose of the article or if it affects the cost or quality of the article." Qualitex v. Jacobson Prods., Co., 514 U.S. 159, 165 (1995). Trade dress will meet the distinctive requirement if it either: 1) is inherently distinctive; or 2) has acquired distinctiveness through secondary meaning. Two Pesos, 505 U.S. at 769.  Generally, distinctiveness of product design trade dress will not be considered inherent and can only be obtained through secondary meaning. Wal-Mart Stores, Inc., 529 U.S. at 214-16.  Distinctiveness of product packaging trade dress, on the other hand, may be either inherent or acquired. Id. at 214-15. Trade dress is inherently distinctive if its intrinsic nature serves to identify a particular source. Wal-Mart Stores, Inc., 529 U.S. at 210. In other words, inherently distinctively trade dress is that which has a design, shape or combination of elements so unique, unusual or unexpected that it will automatically be perceived by customers as an indicia of origin. McCarthy, § 8.02[4] at 8-23. Courts have held such items as ice cream bar wrapping, the appearance of car sales brochures, reminder letters and reports to be inherently distinctive. See Paddington Corp. v. Attiki Importers & Distrib., Inc., 996 F.2d 577, 584 (2d. Cir. 1993); AmBrit Inc. v. Kraft Inc., 812 F.2d 1531, 1537 (11th Cir. 1986); Computer Care v. Service Sys. Enterprises, Inc., 982 F.2d 1063, 1069 (7th Cir. 1992). Trade dress that has acquired distinctiveness through secondary meaning is trade dress that the public has begun to associate with a single source or producer, even if the actual producer is unknown, rather than just the product itself. Wal-Mart Stores, Inc., 529 U.S. at 211. In many instances, the only practical way to develop secondary meaning in trade dress is by advertising a product’s features claimed as trade dress in such a way that the feature and source become readily associated with each other. McCarthy, § 8.01[2] at 8-16.

How Can I Protect My Trade Dress?

Trade Dress may be registered with the USPTO if it satisfies the federal standards of trademark or service mark protection. Aromatique, Inc. v. Gold Seal, Inc., 28 F.3d 863, 868 (8th Cir. 1994). See Wal-Mart Stores, Inc., 529 U.S. at 209. Registration constitutes "prima facie evidence of the validity of the registered mark . . . , of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark . .. ." 15 U.S.C. § 1057(b). Additionally, registration gives notice that the trade dress is claimed by the producer. Id. § 1072. Trade dress infringement is grounds for a civil action, regardless of whether trade dress is registered or not. 15 U.S.C. § 1125(a). If the trade dress is unregistered, however, the burden to show that the trade dress is protectable is on the producer. Id. § 1125(a)(3).

Will The Heart Attack Grill be able to protect its trade dress against The Heart Stoppers Sports Grill? The restaurant concept certainly appears to be non-functional – you don’t need 8,000 calorie burgers served by waitresses dressed as nurses to meet your daily nutritional needs. But is the restaurant concept distinctive? Some might argue no…just look at the myriad fast food chains eager to serve you a burger, fries, shake, and a coke, which is just as likely to cause a heart attack as the “bypass burgers” served by The Heart Attack Grill. On the other hand, The Heart Attack Grill appears to take this concept to the extreme by unapologetically offering its artery-clogging fare in a distinctive “hospital” setting. This suggests that The Heart Attack Grill concept does constitute unique and protectable trade dress, which could result in early congestive heart failure for The Heart Stoppers Sports Grill.