Is Footlong A Registered Trademark

This scene from the Minnesota State Fair reveals how the "About a . . . Foot Long Hot Dog" stand is a "State Fair Sense of taste Tradition. . . ." With respect to the name, I accept always believed that the "Near a . . ." qualifier is lawyer-driven to avoid imitation advertisement lawsuits if a ruler might reveal a stretching of the truth and/or the wiener unintentionally coming upwards brusk on the promised twelve inches.

Turns out, we have much more to fright in the earth of "Pes Longs" than literally false trademark claims or fifty-fifty chubby wieners in a bun at the State Fair, so, permit's proper name that fright: Subway.

Yes, Subway claims to ain the word "footlong" as a trademark for sub sandwiches. Now, I fully appreciate that Subway has probably spent lots and lots of money on television advertising for its "$5 Footlongs" promotion, merely to claim sectional rights in the word "footlong" for subs is ridiculous (peculiarly when the ads themselves have multiple references to the fact the term is directed to the length of the sub), in my not so humble opinion. Allow's non forget that Lite is generic for beer.

Subway'southward cease and desist letter prompted Casey'southward General Store (a convenience store chain based in Des Moines, Iowa) to bring a declaratory judgment lawsuit:

"Specifically, this action seeks, inter alia, a announcement that Casey'southward use of the generic term "footlong" to describe a footlong submarine sandwich, normally referred to as a "sub", is not a violation of any correct currently endemic by Subway; and it requests an gild so maxim and declaring that "footlong" for description of sandwiches including submarine sandwiches is generic. Further Casey'southward seeks an lodge that Subway's endeavour to assert trademark rights against Casey's for its apply of "footlong" for sandwiches and/or eating house services is frivolous litigation and seeks an laurels of damages and attorney's fees against Subway."

If Casey'southward is correct, this could satisfy the exceptional instance provision of the Lanham Act, which could outcome in Subway beingness ordered to pay Casey's attorneys fees in defending against the claim.

It appears that Casey's aggressive response to the cease and desist letter is designed to take reward of all the electric current focus and attention on "trademark bullying" — although that specific phrase does not appear anywhere in the complaint.

Equally you may recall, I have suggested that "there seem to be plenty existing legal tools to handle a real trademark bully, namely, one that brings frivolous, bad faith, vexatious or objectively baseless litigation." Casey'southward appears uniquely poised to exam this suggestion.

In back up of its claim of frivolity, Casey's relies, in function, on a transcript from a 2009 Subway case where a federal district courtroom estimate in the Eastern District of Virginia indicated he thought that "footlong" should be considered generic for subs.

With respect to Subway's pending trademark and service mark applications for "Footlong" at the USPTO, Casey's has this to say:

Subway has sought trademark protection for "footlong" for sandwiches and restaurant services in trademark awarding Nos. 77/752,328 ("Footlong" for eatery services) and 77/324,328 ("Footlong" for sandwiches). The application for "footlong" for sandwiches was approved for publication by the trademark examiner, but has not issued as a registration because there are many ongoing opposition proceedings filed by the likes of Long John Silvers, Taco Bong Corporation, Kentucky Fried Chicken, Dairy Queen, Pizza Hut, Inc., and Domino's, just to name a few. The application for "footlong" for restaurant services is currently under rejection as a marker that consists of the generic proper name for something that is served in providing restaurant services. A truthful and right copy of the rejection issued past the trademark examiner is attached hereto as Exhibit C. Subway's attempt to establish an acquired distinctiveness under § 2(f) of the Lanham Deed has to date failed.

Hither's a question, how on earth did the word "footlong" for sub sandwiches get approved for publication at the USPTO?

Hither'southward some other, does Subway deserve to have each and every customer measure the length of their purchased sub to see if information technology comes up short, and if so, endure the consequences failing to add the "About a" qualifier too?

Is Footlong A Registered Trademark,

Source: https://www.duetsblog.com/2011/02/articles/trademarks/subways-footlong-trademark-infringement-claim-a-real-stretch/

Posted by: steinerhationger.blogspot.com

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