December 15, 2018

Helping PR pros make smarter decisions

Making a Federal case out of a sandwich

Making a Federal case out of a sandwich

A lawsuit filed in the District Court in Connecticut could have a significant impact on the trend of allowing consumers to generate commercials through contests. [Quizno’s is being sued by Subway]( over the submissions and results of a contest for a user-generated advertising spot.
The winning ad shows two men in a soap-box car derby race, with the Quizno’s car a big, meaty sandwich and the Subway car smaller. Near the finish line, the Quizno’s car zaps the Subway car, upon which the driver exclaims that he “just got toasted.” (Toasting the sandwiches is a Quizno’s tagline.) Other spots submitted were equally tough on Subway, as that was how the contest was designed by Quizno’s.
Competing companies routinely go to court with one another alleging that advertising has stepped over bounds and is either false or misleading. This lawsuit presents a twist on that standard corporate response: are companies equally responsible for content that they solicit, but do not create themselves? If the answer is yes, it could mean the end of these types of contests–at least those that seek to differentiate a company from its competitors. Contest directions clearly stated that there needed to be a comparison, and that Quizno’s sandwiches were to be depicted as “superior” to Subway’s. So, Quizno’s in effect directed contest participants to make disparaging comparisons.
Quizno’s has argued that it is shielded from legal action by a law meant to protect Internet service providers from being responsible for actions taken by individuals using their networks. Subway has countered that the Communications Decency Act shouldn’t trump the provisions of the law that govern advertising, known as the Lanham Act.
Although the case isn’t scheduled to be heard until 2009, the very fact that there is a challenge on these grounds could cause companies to rethink plans to go forward with similar user-generated contests. This would be unfortunate, because some of the content that has been [created by fans]( is creative and funny. Could Quizno’s have been less specific in what it was looking for in a commercial and avoided this squabble? Maybe. But if the court rules in Subway’s favor, how much interesting content will be created when the rules for a contest are written on 47 pages of micro-font? My guess is that companies will say, “why bother” and just revert to doing all of their commercials in-house. Will this be the end of the advertising world? No, of course not. But, it will stifle a fun, new, and interesting way to involve consumers with the brands that they love. The chilling effect this could cause would be very un-toasty, indeed.

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About The Author

Jennifer Zingsheim Phillips is the Director of Marketing Communications for CARMA. She is also the founder of 4L Strategies, and has worked in communications and public affairs for more than 20 years. Her background includes work in politics, government, lobbying, public affairs PR, content creation, and digital and social communications and media analysis.

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