False Ad Claims Not Dismissed Under Communications Decency Act Immunity

This posting was written by Bill Zale, editor of CCH Advertising Law Guide.

Lanham Act false advertising claims against restaurant franchisor Quiznos for posting contestants’ videos in the “Quiznos v. Subway TV Ad Challenge” on a website could not be dismissed for failure to state a claim on the theory that Quiznos was entitled to immunity as an interactive service provider under the Communications Decency Act (CDA), the federal district court in Bridgeport, Connecticut has ruled.

Quiznos and website operator iFilm co-sponsored the nationwide contest, in which Quiznos sought out contestants to submit video entries comparing a Subway sandwich to the Quiznos Prime Rib Cheesesteak sandwich.

The contest rules informed entrants to log onto “meatnomeat.com” to submit their video entries. The entries were posted up through December 8, 2006. Over Subway’s objections, they remained on the inFilm website following the end of the contest and selection of a winner.

Subway alleged that the advertising statements encouraged and promoted by Quiznos and iFilm were false and misleading in violation of the Lanham Act. The invocation of CDA immunity was an affirmative defense.

Taking the allegations of the complaint as true, it could not be held as a matter of law that Subway would be unable to prove a set of facts in support of a finding of no immunity under the CDA.

Whether Quiznos was an information content provider, rather than an interactive service provider, was a question awaiting further discovery, the court held.

The decision is Doctor’s Associates, Inc. v. QIP Holders, LLC and IFILM Corp., Case No. 3:06-cv-1710 (JCH), filed April 19, 2007. The opinion appears at CCH Advertising Law Guide ¶62,554.