If you haven’t seen it yet, there’s an interesting advertising dispute brewing between Quiznos and Subway sandwich shops. It seems Quiznos invited the public to submit homemade videos in a contest intended to target its rival, Subway. The contest rules stated that video 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 looking like sandwiches, with the Subway submarine being destroyed because it did not have enough meat.

Subway subsequently sued Quiznos, alleging that several of the homemade videos made false claims and depicted its brand in a disparaging manner. In addition, Subway also objected to ads that Quiznos itself created, showing people on the street choosing Quiznos over Subway. The legal question here is because Quiznos did not create the submissions, so should it be held liable for user-generated content created on its behalf?

From a claim substantiation standpoint (assuming that the “more meat” claim is one of the false statements), I wouldn’t want to be the attorney representing Quiznos in this one. You see, knowledge is a dangerous thing. In my opinion, once an advertiser is made aware that claims are being disseminated in the marketplace without the prerequisite underlying support, the advertiser is responsible and must exercise a reasonable effort to remove the videos/ads from circulation. As Richard Leighton, a partner at Keller and Heckman who specializes in advertising and trademark law noted in a New York Times article: “It’s not like Quiznos said, ‘Do any interesting video you can.’ They provoked it, instigated it, so it may be that the consumers, in this case, are effectively their agents.” (more…)

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