Friday, January 25, 2013

Subway Sued

There is a Subway restaurant just down the street from my office. I occasionally go there for lunch. When I do, my brain says that all I need is a "six-inch" sub and a cup of water. But my body—specifically my belly—objects strenuously. "We demand 12 inches! We demand Doritos!" My belly is  like the House of Representatives, and my brain is like the Senate, you see. Although the upper chamber is dominated by sober, contemplative types, there are a few rabble-rousers up there too. Call them anarchists. They tend to argue that, in the grand scheme of things, that extra six inches and that bag of Doritos certainly isn't going to do any harm. And they will be so delicious. And they will shut up those plebeians down in the belly. The negotiations go right up to the brink, but usually President Mouth says, "I'll have a footlong ..." and Secretary Hand grabs a bag of chips. The brain gets a pittance when soda is eschewed.

This is on my mind because Subway has been sued here in Chicago (and elsewhere—this has been a feeding frenzy* for plaintiffs' lawyers) for allegedly mischaracterizing the size of its "footlong" and "six-inch" sandwiches. In fact, say the complainants, so-called footlong subs are often only 11 or even just 10 inches long, and six-inchers are actually just half of that. Here's a picture from the lawsuit:

Subway owners claim they cannot control the exact dimensions of the bread after it comes out of the oven. Some footlongs are smaller than a foot, apparently, and other footlongs are even more smaller than a foot.

Relatedly, Subway has for some time been trying to register FOOTLONG as a trademark. The registration was initially refused on the theory that the mark was "merely descriptive"—that is, FOOTLONG just means 12-inches long, so it just describes the sandwich and cannot be used as a trademark. Subway overcame that objection, however, with evidence of "acquired distinctiveness": because they've sold billions of FOOTLONG sandwiches over the years, the buying public associates the term "footlong" with Subway's subs despite its descriptiveness. Subway briefly obtained the registration, but it was canceled in light of oppositions filed by several other restaurants. The other restaurants claim that FOOTLONG is actually a generic term that identifies an entire category of goods. Subway begs to differ, and the matter is awaiting decision by the Trademark Trial and Appeal Board.

Anyhow, it turns out that Subway has another argument against the "descriptiveness" objection to the registration: the term FOOTLONG is really just fanciful when it comes to Subway's sandwiches.

I was interested to learn that Subway also registered a trademark for my name—BART—just two weeks after I was born. Thankfully, however, that registration was abandoned in the early 80s. They must have realized there was no sense competing with me when it comes to sandwiches.

We'll see how this turns out for Subway, but one thing is certain: the hungry hordes in my tummy now have yet another argument in their favor when it comes time to buy a sub: "C'mon, it's not like it's really twelve inches long! And do you think a five inch sub is going to satisfy us? We want Doritos! We want Doritos!"

*In a show of remarkable restraint, I have limited myself to just one intentional pun in this post.


  1. Hilarious, ridiculous, predictable. Did you hear about the guy whose whole left side was cut off? He's all right now.

  2. I smell a "deceptively misdescriptive" argument in the next TTAB filing.

  3. Mike, I think that's just the smell of fresh-baked bread...

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  5. Bart, coincidentally, that's exactly what a deceptively misdescriptive argument smells like.

    More importantly, I think Anonymous makes a good point regarding your failure to account for how this all relates to treatment of genital warts.


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