Did Subway Put Its Foot(long) In Its Mouth?

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Subway certainly has done a tremendous job branding itself in the last few years, positioning itself via its Jared Fogle healthier eating campaign as the antithesis of “fast food.”

The brand manages to promote health and value in a clear message that is not confusing or jumbled.

Moreover, the chain’s recent five-dollar footlong promotion has improved the brand’s bottom line. Since launching in 2008, Subway’s $5-footlong deal has become its most successful campaign ever, generating billions of dollars in profits. The song for the promotion (above) has become a viral earworm in recent years.

Now, like any smart brand concerned with imitators, Subway is moving to protect its “footlong” golden goose; but is the brand doing more harm than good?[more]

It appears that Subway is sending cease-and-desist letters to hotdog vendors using the term “footlong” to sell their wares. In one case, Subway even targeted a hotdog vendor that has been selling “footlong” dogs for 40 years. After the news broke, Subway explained the hotdog case as a “clerical error,” but said it would continue targeting those using the “footlong” term to sell sandwiches.

However, as one patent attorney points out, “Federal trademark law prohibits federal trademark registrations on words which, when used in connection with the goods, are merely descriptive.” and “A cursory Google search reveals over 6,000 uses of the words ‘footlong sandwich’ apart from the term ‘Subway.'”

Subway’s trademark application for “footlong” is currently under review. However, instead of bullying users of “footlong,” might Subway be better served to continue to own the term, effectively making all other smaller operators’ uses a sort of message multiplier?

The best way for Subway to associate the term with its brand positioning may not be by legal means, but by effective branding and consistent messaging. Agree or disagree? Post a comment below!

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