There is a fascinating legal fight brewing in New York between sandwich chains Subway and Quiznos. At issue is the liability for companies using popular taste tests in commercials and the provocative question of whether it is possible to slander a sandwich.
It is now quite common to see taste tests in commercials as one company shows that people on the street refer Pepsi to Coke or some other product comparison. So when Quiznos invited customers to do their own commercials on the superiority of their sandwiches to Subway, it was probably viewed as just another version of this time-tested genre. That assumption was wrong. Subway is moving toward court in a case that could help shape future marketing and tort principles in this area.
Subway has sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos over what it alleges are made false claims and false images. The videos were posted on a Quiznos site called meatnomeat.com, as well as on iFilm. The New York Times reports:
About 115 videos were submitted by consumers, and all were viewed by Quiznos or iFilm before they were posted to the meatnomeat.com site, which has since been taken down. Some consumers also posted their videos on YouTube of their own accord, and those videos remain there. The winning video showed two young men racing down a hill in wagons. The Quiznos vehicle is shaped like a meaty sandwich, and its driver blasts the plain-looking Subway car with smoke, causing it to topple over in defeat. Its creators won $10,000, and their video was shown on VH1 and on a giant screen in Times Square on New Year’s Eve in 2006.
The lawsuit (with a trial set for 2009) will seek to establish that these average citizens were in fact agents of Quiznos. That is important because there are protections for Internet sites under federal law. Under the Communications Decency Act, “providers” of “interactive computer services” are given immunity from liability for user postings on their sites. However, given the involvement and support of the company, this may be viewed as closer to an agent or employee than a blogger or user by the courts. There is also the question of trademark violations under the Lanham Act.
It will likely be viewed as a very close question and could create lasting precedent.
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