Subway Can Pursue Suit Challenging Quiznos' Comparative Ads

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Lanham Act claims challenging Quiznos' television commercials and an Internet contest, comparing the amount of meat in Quiznos and Subway sandwiches, could not be rejected on summary judgment because there were numerous unresolved issues of material fact, the federal district court in Hartford has ruled.

Twice the Meat

Quiznos contended that the claims made in its Cheesesteak Commercial were true because its Prime Rib sandwich actually contained two times as much meat as the Subway Cheesesteak sandwich. However, field testing of 651 franchises conducted by Quiznos showed that 27.65% of franchises failed to meet Quiznos’ standard of 5 oz. of meat, and 10.29% made sandwiches with less than 4 oz. of meat, the court found.

A comprehensive survey of 4,370 Quiznos franchises revealed that 44.14% of the Prime Rib sandwiches tested contained less than 5 oz. of meat, and 5.86% contained less than 4 oz. of meat.

The parties appeared to agree that the Subway Cheesesteak sandwich contained at least 2.5 ounces of meat. In addition, the Subway Cheesesteak was available with a double portion of meat for an extra $1.00.

Literal Falsity

Quiznos unsuccessfully argued that the commercial could not be literally false because it was ambiguous. The court determined that the commercial clearly conveyed the “twice the meat” message by direct side-by-side comparison of the two sandwiches along with commentary by “men on the street” indicating that the Subway sandwich has “little meat” or “no meat,” as well as by the text frame reading that the Quiznos sandwich had “more than 2x the meat.”

Implied Falsity—Price Message

Genuine issues of fact were created by the parties' conflicting surveys of whether Quiznos Ultimate Italian commercial conveyed a price message. Given Quiznos' claim that its sandwich contained a double portion of meat, if the competing products were perceived as costing the same, consumers arguably were misled into believing that the Quiznos sandwich would be a better value for the money.

Internet Video Contest

Finally, there were genuine issues of fact as to whether false representations were made in connection with Quiznos' Internet-based contest, which solicited videos through the domain name “meatnomeat.com.”

Four posted sample videos depicted a Subway sandwich as having no meat or less meat than a Quiznos sandwich. Quiznos' contention that the posting of the videos did not constitute commercial speech for the purpose of influencing customer to buy Quiznos' products was unpersuasive, according to the court.

The opinion, Doctor's Associates, Inc. v. QIP Holder LLC, is reported at CCH Advertising Law Guide ¶63,763.