Subway: That’s Our “Footlong”
Subway, a large sandwich franchise, had been sending cease and desist letters to small sub shops. The full text, which can be found here (PDF courtesy of NPR’s Plant Money), cites Subway’s recent application to the United States Patent and Trademark Office for the word “FOOTLONG” in reference to its signature 12-inch subs. The problem? Subway also sent a letter to the Coney Island Drive Inn, a restaurant in Brooksville, Florida, which sells footlong hotdogs. Subway Spokesperson Kevin Kane claims that this was a clerical error and that Subway is only trying to enforce its trademark in reference to sandwiches.
“Any legal process we go through is to protect the investment our franchisees have made in the brand,” Kane said to NPR’s Planet Money columnist. However, the USPTO will have to carefully weigh whether a “footlong” is a Subway creation, or whether it is merely descriptive of a sandwich that reaches the 12-inch mark.
By Eric Perrott
I find this pretty absurd. Can Subway really trademark this? Is it just when FOOTLONG is written in all capitals? I fail to see how any customer would be confused by another company's similarly (unnecessarily) long sandwich, and how that that would possibly harm Subway's established sandwich business. Seems to be crazy over-enforcement!
The footlong mark seems to be merely descriptive unless Subway can come up with a clever argument for secondary meaning and that the public associates the mark with Subway when they hear footlong. It seems like Subway might have a decent argument to make, especially given their catchy jingle and extensive advertising campaign over the past few years.
I can see why Subway is upset. They have put in tons of advertising dollars to promote their "$5 Footlong" — in fact its hard to watch a television show without seeing of their commercials. Now their competitors are using the footlong name that Subway made famous. There is also the potential to confuse consumers and dilute the subway brand.
I agree with the “$5 Footlong” being something that they marketed heavily, but the “Footlong” seems to be purely descriptive.
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