Subway sued over rights to 'footlong'

10:38 AM, Feb 15, 2011   |    comments
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Des Moines, IA - A food fight is brewing in federal court here. The dispute centers on one question: Is the term "footlong" a noun that describes sandwiches served by the Subway restaurant chain, or is it an adjective used to describe any 12-inch sandwich?

That question, which has national implications tied to several multimillion-dollar ad campaigns, may soon be put to a jury.

Casey's General Stores of Ankeny, Iowa, is suing Subway to fight Subway's claim of exclusive rights to the non-hyphenated, grammatically tortured term "footlong" in promoting sandwiches and related services.

For years, Subway, with 34,000 outlets in 93 countries, has promoted its line of specially priced 12-inch sandwiches, some of which are described as "five-dollar footlongs."

Casey's, which has 1,600 stores in the Midwest, is in the process of rolling out a similar promotion. At 180 of its locations, Casey's is offering made-to-order sandwiches and is using the term "footlong" on signs and menus.

Three weeks ago, one of Subway's lawyers, Valerie Pochron, wrote to Casey's and asserted Subway's proprietary rights to "footlong" and other elements of the Casey's campaign.

"Additionally, the offers of soup and pizza, as well as the design of the advertising offers, are all designed to create confusion to the average consumer," Pochron wrote.

Subway threatened to sue, but Casey's took the initiative, and on Friday filed a petition in U.S. District Court here. Casey's is asking for a jury trial and is seeking a declaration that the term "footlong" is generic and does not violate any trademark owned by Subway. Casey's is also asking for unspecified damages over Subway's "frivolous" claims.

"Casey's has and will continue to use 'footlong' to describe a sandwich," Casey's lawyers said in their petition.

Subway's trademark application for "footlong" has yet to be approved by the federal government. A&W, Pizza Hut, Kentucky Fried Chicken, Taco Bell, Long John Silver's and other restaurants are opposing that application.

The company that owns Subway, Doctor's Associates, hasn't filed a response to Casey's petition. No trial date has been set.

The outcome of the case could affect restaurant menus across the nation. In 2010, Hardee's began test-marketing an 850-calorie foot-long cheeseburger that features three ground-beef patties parallel-parked on one 12-inch bun.

Clark Kauffman, The Des Moines Register

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