Footlong…Get Your Footlong: But Not as Your Trademark

On September 6, 2013, in Trademarks, by Brian A. Hall

UnIntellectual Property (UnIP): Trademark for FOOTLONG Sandwich

The Trademark Trial and Appeal Board (TTAB) has sustained an opposition and refused to issue a trademark registration to Subway for its FOOTLONG trademark application for use in connection with sandwiches.  The Board determined that the mark was generic, and thus not subject to exclusive trademark ownership and protection by Subway.  Once again, TTABlog® summarizes it best, and I will direct my readers there for more in-depth analysis, with some comic relief as well.

As should happen in any dispute involving arguably generic, and even descriptive marks, a Teflon survey was acquired by both the Opposer, Sheetz, and the Applicant, Subway.  The survey results were under attack, as is usually the case.  Therefore, the Board ultimately found “footlong” to be generic.

What does this mean?  Well, unless a Court of law says otherwise, any one can use it in connection with a sandwich, although Subway may try to flex its muscle an effort to stop it.  This may also affect its other applications, including one for $5 FOOTLONGS.  Based upon the USPTO’s handling of other marks that include the word “footlong,” be it for sandwiches or hotdogs, it is unlikely that an entity will be able to claims exclusive rights to the term in connection with any food item measuring 12 inches.  I expect the term to remain UnIP.

Sheetz of Delaware, Inc. v. Doctor’s Associates Inc., Opposition No. 91192657 (September 5, 2013) [precedential].


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