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Best headline ever: Can a Sandwich Be Slandered?

I was planning on writing about this a couple weeks ago, but I got distracted. But considering today is the 12th anniversary of the CDA, I revived the post.

In 2006, Quiznos created a contest encouraging ordinary people to record home video commercials of why Quiznos is better than Subway. Sounds harmless enough, right? Wrong:

Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way. Subway is also objecting to ads that Quiznos itself created, showing people on the street choosing Quiznos over Subway.

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?

Hmmmm...Subway might have a point here. It sounds like Quiznos is outsourcing its commercials to third parties in order to avoid responsibility for the users' content. Plus it has the advantage of being novel and low-cost.

If Subway prevails, it could be the death knell for future advertising contests across all industries. So how have Subway sandwiches been slandered by YouTube geeks

Among the videos that can still be seen on YouTube, one shows a wife arriving home with a Quiznos sandwich for her husband and a Subway sandwich for her dog. In another, a young man runs through town to find a sandwich, passing by seven Subway stores before he reaches a Quiznos and goes in. In a third, two men punt sandwiches across a parking lot; the Subway one soars high but the Quiznos one is so heavy that the man falls over when he kicks it.

Now it seems like Subway is just being silly. Advertisers take creative license in comparing products all the time. That's not false advertising. Although given how ridicolous Internet videos can be, it wouldn't be a stretch for a user to create buzz around a "Subway Causes Cancer" advertising campaing. That would be false advertising (I hope). So the legal issues come down to this:

The Subway/Quiznos case hinges on how the District Court of Connecticut interprets two federal laws: the Lanham Act, which dates to the 1940s and centers on trademark rights, and the Communications Decency Act, which was passed in 1996 to safeguard the Internet. Last spring, Quiznos and iFilm tried to claim they should not be liable for user-generated content because of the Communications Decency Act, which immunizes ?providers? of ?interactive computer services? from responsibility for user postings on their sites.

Yikes, the CDA. I knew it dealt with Internet porn, but it regulates fast food, too? I'll keep my eye on this case. But for now, I need a sandwich.

Full post as published by Supreme Dicta on February 08, 2008 (boomark / email).