Subway’s Lawyers for “Footlong” Trademark — Here Come

Dumb and Dumber.

A representative for Doctors Associates Inc., known for its Subway sandwiches restaurants, has filed a trademark for the term “Footlong” for restaurant services. The firm is claiming a first use in commerce date of 1967.

The firm then sent a cease & desist letter to Coney Island Drive In, which sells footlong hot dogs and uses the web site GotFootlongs.com. Apparently that letter was sent due to “clerical error”. But clearly the firm is trying to enforce its (as yet unapproved) trademark.

What does this have to do with domain names? Well, I was going to tie it to the owner of Footlongs.com. But following typing in that domain I quickly closed my browser. (Seriously, don’t go there.)

I could also tie it to these legal services firms that send out automated cease & desist letters using a shotgun approach. When you respond telling them that your web site doesn’t even include their trademark, they disappear.

Alas, Subway might not get the trademark it wants. Or it will at least have to do some more work. On April 29 the U.S. Patent and Trademark Office rejected Doctors Associates’ trademark claim to the class of “restaurant services”:

Registration is refused since the applied-for mark, as used on the specimen of record, does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services…

The applied-for mark, as shown on the specimen, does not function as a service mark since the mark refers specifically to sandwiches, which are Class 030 goods. A term that serves only to identify a menu item does not function as a service mark for restaurant services.

I can’t wait for the firm to suggest that Footlongs.com infringes its trademark. That would be rather embarrassing.

Hat tip: John Berryhill.