Slandering Sandwiches and User Submitted Content

Our very own Sam Bayard popped up today in a New York Times article about the Subway v. Quiznos lawsuit, humorously named: "Can a Sandwich be Slandered?" The article does a good job highlighting the complicated issues involved in the case (and implicated by company sponsored competitions for "homemade commercials" generally).

The case itself is quite fascinating. In late 2006, Quiznos and video-sharing site iFilm co-sponsored a nationwide contest, “Quiznos v. Subway TV Ad Challenge,” inviting members of the public to submit videos comparing a Quiznos sandwich to a Subway sandwich using the theme "meat, no meat." Contestants submitted their videos to, and iFilm published entries on its website, where they remained following the end of the contest and selection of the winner.

Subway sued Quiznos in federal court in Connecticut, and it subsequently amended its complaint to include a claim against iFilm. Only one count of the complaint related to the Ad Challenge, and that count alleged false and misleading advertising in violation of the Lanham Act.

As the New York Times reports:

The dispute over an ad is fairly standard — companies often sue one another over advertising claims — but the video contest raises a novel legal question: Quiznos did not make the insulting submissions, so should it be held liable for user-generated content created at its behest?

If the answer is yes, that could bring a quick death to these popular contests, advertising executives say. Consumer brands like Doritos, Dove, Toyota and Heinz have run promotions of this sort because they generate publicity, usually at a low cost to the advertiser, and sometimes lead to clever spots that work well on television. But the Subway lawsuit, which seeks financial and punitive damages, seems to open a Pandora’s box.

Not surprisingly, Quiznos moved to dismiss the trademark claim based on the immunity for publication of user-generated content found in section 230 of the Communications Decency Act (47 U.S.C. § 230(c), "CDA 230"). The court denied the motion, holding that CDA 230 provides defendants an affirmative defense, which can be raised on a motion for summary judgment, but not on a motion to dismiss. Doctor's Assocs. Inc. v. QIP Holders, LLP, No. 06-cv-1710, slip op. at 4-5 (D. Conn. Apr. 19, 2007). The court did not, however, address the merits of Quiznos' defense.

This case is significant in that it departs from the majority of cases holding that CDA 230 provides a valid ground for granting a motion to dismiss. Another interesting issue is whether a claim of false advertising under the Lanham Act fits within CDA 230 immunity. By its terms, CDA 230 does not apply to "any law pertaining to intellectual property." 47 U.S.C. § 230(e)(2). False advertsing law is not usually thought of as an aspect of intellectual property law, but the federal false advertising provision is found in the Lanham Act, side-by-side with federal trademark laws.

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