Subway v. Quiznos: Homemade Advertising, YouTube & You
By: JOHN C. PICKERILL
February 2008
YouTube,™ iFilm® and similar sites are becoming increasingly popular advertising tools, offering free media and few creative constraints to imaginative advertisers. Unfortunately, the nature of this medium lends itself to various tactics and creative messages which can lead to serious legal risk.
As you might expect, local ad agencies were quick to jump on these video web sites, leveraging the popularity and creative freedom of this media to their clients’ advantage. Whether it’s Olson + Company’s Nike® Bauer® Spotlight at http://www.youtube.com/watch?v=QdwV0Zxv-70, Colle + McVoy’s Erbert & Gerbert’s® “Human Flipbook” at http://www.youtube.com/watch?v=AulVwjcnJhI or the internet-only Jack Links’® “Messin’ With Sasquatch®” spots created by Carmichael Lynch (run a search), Minnesota agencies are using these video sites to interact with consumers on an entirely different level.
The free-wheeling, Old West feel of a site like YouTube™, coupled with the questionable content posted by many individuals, makes it easy for advertisers to believe that the only rule on these video sites is to entertain your audience. Unfortunately, advertisers are starting to find out the hard way that the rules of advertising which govern the printed page and the 30-second television spot also apply to new forms of internet media.
In late 2006, Quiznos initiated the “Quiznos® vs. Subway® TV Ad Challenge” contest, in which it challenged consumers to create videos showing Quiznos® sandwiches as superior to category leader Subway’s.® At the time, the Quiznos’ corporate ad campaign was already claiming that its sandwiches were meatier than Subway® sandwiches, so consumers were inspired to run with that theme. The consumer videos were to be screened by Quiznos and then posted on the site www.meatnomeat.com, as well as iFilm.®
“Quiznos® vs. Subway® TV Ad Challenge” contest ad.
Over 100 videos were submitted, including one showing a Subway® sandwich going to a Quiznos® shop looking for meat, a guy falling over trying to punt a Quiznos® sandwich, and a Subway® sandwich that looks like an actual submarine being blown up due to a lack of meat. Many of these videos can still be found on YouTube.™
Subway obviously did not find the videos funny and promptly sued Quiznos and iFilm, stating Quiznos should be held responsible for false and disparaging claims made by consumers via a Quiznos sponsored contest. Quiznos maintains that it did not make any of the statements itself, so it should not be liable for any false advertising or disparagement claims.
This presents an interesting legal question: Can Quiznos, and other advertisers, hide behind consumer-created content to say things about competitors that they otherwise could not say? Assuming statements in these videos were false and/or disparaging, there would be no doubt that Quiznos would be liable if it created the videos itself. However, the First Amendment allows individuals to make statements which cannot be made in a commercial context. Should the fact that Quiznos initiated the contest and apparently encouraged consumers to criticize Subway’s® products be enough to trump the free speech rights of consumers?
I usually side with preserving creative freedom in any type of advertising dispute, but I have to believe the court will hold Quiznos responsible for the statements made in these contest videos. Quiznos initiated the contest, and the rules appear to encourage consumers to run roughshod over the Subway® brand. Also, Quiznos even screened the videos and provided a venue for displaying them. The Federal Trade Commission has already established that advertisers can’t use a third party to make statements the advertiser itself could not otherwise make via tactics like testimonials and endorsements. As a result, I would be surprised if the Subway case doesn’t follow suit and determine that Quiznos can’t use consumer videos to do its dirty work.
The case is scheduled to go to trial in district court in Connecticut in 2009. Hopefully, this issue is fully litigated (rather than settled) to provide advertisers with some guidelines regarding future contests involving consumer-generated content. These promotions generate publicity, don’t cost much for the advertiser, get consumers fully immersed in the brand and sometimes lead to fun creative, so I’m hoping the Subway suit doesn’t discourage future advertisers from embracing such promotions. There are certainly ways to minimize the legal risks associated with inviting consumers to create their own brand messages. Advertisers just need to take proper precautions to avoid creating the kind of legal mess Quiznos created with its “Quiznos® vs. Subway® TV Ad Challenge.”