Some companies have made a sport of using advertising to bash a competing brand: Pepsi and Coke, Colgate and Crest, Miller Lite and Bud Light.
It was a rivalry of this sort that compelled Quiznos, the toasted-sandwich chain, to invite the public to submit homemade commercials in a contest intended to attack a top rival, Subway. The contest rules made it clear that the videos should depict Quiznos sandwiches as “superior” to Subway’s.
Subway promptly sued Quiznos and iFilm, the Web site owned by Viacom that ran the contest, saying that many of the homemade videos made false claims and depicted its brand in a derogatory way. Subway is also objecting to ads that Quiznos itself created, showing people on the street choosing Quiznos over Subway.
The dispute over an ad is fairly standard — companies often sue one another over advertising claims — but the video contest raises a novel legal question: Quiznos did not make the insulting submissions, so should it be held liable for user-generated content created at its behest?
If the answer is yes, that could bring a quick death to these popular contests, advertising executives say. Consumer brands like Doritos, Dove, Toyota and Heinz have run promotions of this sort because they generate publicity, usually at a low cost to the advertiser, and sometimes lead to clever spots that work well on television. But the Subway lawsuit, which seeks financial and punitive damages, seems to open a Pandora’s box.
“Let’s just hope that as collateral damage it doesn’t kill the entire genre of competitive advertising,” said Brad Brinegar, chief executive of McKinney, an ad agency in Durham, N.C., that does not work with Subway or Quiznos.
In its lawsuit, Subway contends that the consumer videos — which were posted at a site Quiznos had set up called meatnomeat.com, as well as on iFilm — contained “literally false statements” and depicted Subway in a “disparaging manner.”
Subway asserts that “the contest rules, the promotion of the contest on the Quiznos meatnomeat.com and iFilm Web sites, and the use of the videos were all part of an organized campaign to penetrate the market in which Quiznos and Subway compete.”
The case is scheduled to go to trial in federal district court in Connecticut in 2009. The plaintiff is Doctor’s Associates, the franchiser of Subway, and the defendants are iFilm and QIP Holder, a subsidiary of the Quiznos parent company that owns the Quiznos trademark.
Subway and iFilm declined to comment for this article. A lawyer representing Quiznos said the company had no involvement in the creative aspects of the consumer videos.
“We’re just facilitating consumers who go out and create their own expression in the form of a commercial,” said Ronald Y. Rothstein, a partner at Winston & Strawn, on behalf Quiznos.
The contest, called the “Quiznos vs. Subway TV Ad Challenge,” was held in the fall of 2006. About 115 videos were submitted by consumers, and all were viewed by Quiznos or iFilm before they were posted to the meatnomeat.com site, which has since been taken down. Some consumers also posted their videos on YouTube of their own accord, and those videos remain there.
The winning video showed two young men racing down a hill in wagons. The Quiznos vehicle is shaped like a meaty sandwich, and its driver blasts the plain-looking Subway car with smoke, causing it to topple over in defeat. Its creators won $10,000, and their video was shown on VH1 and on a giant screen in Times Square on New Year’s Eve in 2006.
But Quiznos was already aggressively comparing the meatiness of its sandwiches with Subway’s in its professionally made ads — which are also part of the suit — when the contest was announced. According to the rules, submissions were meant to draw “a comparison between Quiznos and Subway with Quiznos being superior.”
One of the videos showed a Subway sandwich running to a Quiznos store to find more meat. Another showed two submarines fashioned as sandwiches, with the one representing Subway being obliterated because it did not have enough meat, according to the suit.
Among the videos that can still be seen on YouTube, one shows a wife arriving home with a Quiznos sandwich for her husband and a Subway sandwich for her dog. In another, a young man runs through town to find a sandwich, passing by seven Subway stores before he reaches a Quiznos and goes in. In a third, two men punt sandwiches across a parking lot; the Subway one soars high but the Quiznos one is so heavy that the man falls over when he kicks it.