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StumbleSubway sues Vegas restaurant alleging trademark infringement
Published Monday, Oct. 19, 2009 | 9:43 a.m.
Updated Monday, Oct. 19, 2009 | 10:55 a.m.
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The owner of the Subway sandwich empire is suing a Las Vegas restaurant for calling itself "Subway Avenue."
Doctor's Associates Inc. of Milford, Conn., franchisor of the Subway chain of sandwich shops, filed suit in U.S. District Court in Las Vegas last week against the Subway Avenue restaurant in the Village Square shopping center at 9440 W. Sahara Ave., Suite 175, and its owner Gevork Boyadzhyan.
Subway, which says its system has 31,879 restaurants in 91 nations, asserts in the lawsuit claims of trademark infringement, unfair competition and Internet cybersquatting.
Subway says Boyadzhyan opened Subway Avenue around June and that the business and his Web site showing the Subway Avenue menu infringe on Subway's trademarks.
The lawsuit, filed by attorneys with the firm Gordon Silver, said Subway sent a letter to Boyadzhyan on Aug. 18 demanding he stop infringing on its trademarks -- but that the defendant has continued to use the name "Subway Avenue."
But Boyadzhyan said Monday that in response to Subway's demands, he's already changed the name of the business to "Sub Avenue."
"They gave me a hard time about the name," the business owner said.
"Defendant's use of plaintiff's mark within the name of its restaurant and related services will likely cause confusion or mistake, or will likely deceive the public as to defendant's food products and restaurant as being associated or identified with or being the same as those of plaintiff," the suit charges.
On the cybersquatting count, Subway charged: "Defendant has registered, trafficked and/or used (an Internet) domain name that is identical or confusingly similar to and/or dilutive of plaintiff's mark, which was distinctive at the time of registration of the infringing domain name."
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I'm pretty sure I wouldn't confuse Subway with Subway Avenue for any reason. Unless I wanted a "crapwich" then for sure I'd head to Subway.
I bet if you called your restaurant "Gag a Maggot" they would sue too.
If I were subway avenue, I'd let them sue me for all the publicity it will get. In Utah, a restaurant named "Chadders" opened up that copied EVERYTHING "In'n Out" does down to the same colors and a logo that looks similar (http://www.chaddersusa.com/)...eventuall... all they had to do after being sued by "In'N Out" is add blue to their colors....that's it. Everything else is the same...and trust me, they copied everything!
Subway Avenue's menu isn't even similar...it looks just like Verrazano's Pizza's, where I used to work as a teen, menu more than Subways' menu. I don't think Subway will win this and are just trying to use scare tactics...don't back down, and they'll go away.
UNlvreblx, yeah but "Chadders" isn't even close of a name to "In n Out" burger. "Subway Ave", is pretty close of a name to "Subway" wouldn't ya think? Subway will win this. I couldn't have a hamburger place named "McDonalds ave" could I?
an example of corporate hate.
Yeah but does Subway Avenue have the $5.00 12 inch?
Subway Ave couldn't help but improve the reputation of Subway.
They should leave them alone.
Subway sucks! Big corp. slapping around the mom and pops.
I think it was an unfortunate decision for this man to name his place Subway Avenue... er, Subway Ave. He is going to lose the lawsuit for obvious reasons, and through the association of his restaurant with the Subway chain, he has assured that a number of people, myself included, will not be customers. I'm wondering if he also stole the idea of going easy on the meat and heavy on the lettuce.
Toss this out of court, pronto. It's ridiculous that corporate interests can lock up the usage of WORDS in the English language, which belong to everybody. Did you know that their are private interests which are also trying (or by now maybe have succeeded) seizing the "patent" and "copyrights" to the human genome? This is crazy. If corporate lawyers were around during pre-historic times, nobody else would be allowed to use the wheel, fire, or human language, without paying through the nose. Civilization wouldn't be where it is today. Words belong to everybody. Toss this crap out of court.
Plain and simply: Trademark law requires the holder of a trademark to defend it or it is considered abandoned.
Go, Subway! Sue the lazy folks trying to leech off your success. More power to you.
subway sandwiches are junk. i'd rather buy a quickie pre-made tuna sandwich from 7-11. port of subs is only slightly better, not great. its hard to find a well made sandwich in vegas. believe it or not, the sandwiches made at vons supermarkets, where i do not shop, are excellent. i'm from california where "togo's" ruled.
Why's everyone complaining about Subway? It's like our main source of food with one in EVERY darn strip center in town.
James P Reza,
May the estate of James B Reston, famous former journalist with the New York Times, sue you for trying to "leech off (his) success." Your name bears more of a likeness to his, than Subway Avenue ever has to Schlubway.
"Plain and simply: Trademark law requires the holder of a trademark to defend it or it is considered abandoned."
Plain and simply, I reject this claim of yours. First: it's irrelevant, in that the name of the two establishments are different enough, corporate lawyers' frivolous CYA claims, notwithstanding. Second: it is not required for the owner of a trademark to take legal action against each and every alleged infringement of said trademark anyway, when such "infringements" are "minor and inconsequential." Subway has over 30,000 restaurants in close to 100 different nations around the globe. Subway Avenue has... one. And here in Las Vegas where it is located, most of us haven't even heard of it. Even if the infringement claim WERE legitimate, it would have been about as inconsequential as they come.
Eighty-six this case from the court docket immediately. And cease and desist with your identity theft, James P/B Reston.
If you look at his website menu the logo is created so that he is completely ripping of the Subway trademark.
I am not a fan of the big guy going after the little guy, but this is pretty blatant.
www.subwayavenue.com
Denro,
What food poisoning just caused you to post THAT nonsense??? Subway Avenue has a completely different layout, design, color scheme -you name it- compared with Subway's menu. The menu items themselves, differ significantly, too. Avenue's features pizzas right at the top, and has watermark pictures of pizzas beneath the menu items on both pages. I could go on, but let folks see for themselves: look at Subway Avenues' menu, linked to above, and then Schlubway's, found here:
http://www.subway.com/applications/Menu/...
The name "Subway' is property. Valuable property. If Subway Avenue sold underground newspapers instead of sandwiches, they might be able to argue successfully that customers would not be confused. But since they do sell sandwiches and the name looks like and sounds like Subway, they have no defense. Whether their meatball subs are superior to Subway's meatball subs is irrelevant.
What if he called his restaurant "We're Not Subway"?
the defendant and their attorney need to make SURE the plaintiff's law firm have not made any campaign contributions to the judge hearing the case.
this law firm DOES do that.
i go to capriotti's. it's a little more money, but it's better quality. you ever noticed how freakishly perfect and uniform subway's tomatoes are?
i stopped going there after their misleading advertising claim of ANY footlong sub for $5, and then you go in and like 5 of them are $5 but the rest are like $11. any? hardly. boycott subway.
Then do not ask for a sub sandwich anywhere outside of Subway or look for sub sandwiches in stores. The owner changed his store name to Sub Avenue....will Subway want ownership of the name "sub" as well. That is a lot of stores everywhere that would have to remove the "sub" name.
He should rename it- "Less Nauseating Then Subway".
The term "sub" for sandwiches is a shortening of "submarine" not "Subway". Subway was really the first to use "Subway" when referring to sandwiches. So I'd say they have every right and responsibility to defend their trademark.
Not to say that a person or corporation should be able to patent and trademark any and everything. DTJ, as you pointed out the genome patents (which are well established at this point)are a travesty.
Blah blah blah - who cares?
I used to love Subway, the big chain, but then many years ago on a stop in Williams, AZ at that gas station just west of Flagstaff, I ordered a tuna sub at that Subway. When the clerk dipped her thingy into the literally gray undefined substance which was supposed to be tuna, I had to go to the bathroom and throw up. I've never seen a thing like this before, and it took many years for me to overcome that picture (which is still stuck in my mind) and I didn't even enter a Subway store until recently.
I went to the very first Subway Rest. which opened up in the seventies in Ct. It was the greatest thing that ever happened since the Big Mac! Subway today is still great and alternative low fat food (if desired) You can't knock 'em for trying to protect all of the years and dollars spent on their brand development. Along comes some guy who tries to slide in through the back door and make money off of all that hard work and revenue spent by someone else.. disgusting and typical of those sleazy scavenger like cesspool dwellers in our capitalist greed oriented world.
This shows the major problem with education. Listen goofballs, there are copyright and tradmark laws. It has nothing to do with the sandwiches. Some of you who did not pay attention through the 3rd grade may not be able to understand the concept.
"DJT," you can voice your anger against the system couched in witty repartee all you like, but trademark law still requires the holder of the trademark to defend it. This isn't an "opinion" -- it's trademark law.
If a holder fails to file a suit of trademark violation in any instance in which a violation is suspected, it will set precedence for future unauthorized use of the trademark and future unraveling of the value of the trademark holder's intellectual property.
You may not "agree" with the concept that intellectual property can be trademarked or has an actionable financial value, but that doesn't make your legal assertions correct.
Further to the point, corporate attorneys review any suspected violation and make a determination for the trademark holder as to the necessity and viability of any violations claim.
Still, it is up to a judge to ultimately decide what is a "consequential" or "inconsequential" violation. In any case, the trademark holder filing the violation suit is shoring up their position simply by filing and vigorously defending the trademark, which adds up to firm ground upon which to stand for future, possibly more serious, violations.
sassyfrolet : I can tell your a woman and probably a comedian...right?
DTJ, I'm a raw food and vegetarian person, so the possibility of me getting food poisoning is very low, but what I was alluding to was the back of the menu in the logo area at the top right where it says SUBWAY and then SANDWICH underneath that and then AVENUE to the right.
I really do get that the way it's structured is potentially misleading and do believe SUBWAY is well within their rights and should definitely protect their trademarks.
This case has more merit than some cases I've followed & have known personally, like "FRUTZ" ("Fruit' in German. Children's Designer fruit color(s) & themed active outerwear) and "FRUIT OF THE LOOM's WEAK claim of infringement, which was like FOTL seeking to gain an exclusive on the word Fruit in another language, whose product line could NEVER be confused with "Frutz", the same as the like the makers of "TINACTIN" who were never pursued with the use of a like Flame LOGO by "EKTELON" (Prince Sports Group/Benetton/Edizione-ITALY,) makers of racquetball racquets, athletic shoes, & other related fitness wear.
In the case of Subway, considering their familiarity & dominance with their International advertising campaigns in the Global Marketplace, I find it more than difficult to believe that anyone, anywhere could or would EVER confuse or mistaken anything about "SUBWAY AVENUE" w/ "SUBWAY", incl. signage, color scheme & interior designer & decor, advertising, & menu, no matter how similar, close, or identical it is to Subway's any more than the "MR. SUB" (CN) chain, in an Medium.
If Subway presses & pursues this, like Fruit of the Loom, it will in all likelihood come down to who can "outspend" the other defending themselves, no matter how frugal or weakly based, and therefore will have less to do with any actual merit to their claims if this LV business ever changed their name.
"TM" INFRINGEMENT - Hardly.
UNFAIR COMPETITION - with an advantage on a Global scale of of "1" (local business) Subway Avenue vs. 31,879 Subway Outlets Globally with National & International advertising,P - THIS IS A REAL STRETCH of a claim.
INTERNET SQUATTING - Please.
zw
P.S. Even "Gevork" could never be confused for "Jared."
Subway needs to rename their domain to either :
Subwaste or Subgay....
Yeah I hear ya Bam1969, what false advertising they are...'all foot long subs for $5.00' -my pulo !!
I ordered a pastrami sandwich (my favorite) and when they told me it was $8.50 plus tax and "not part of the $5 deal", I threw that sandwich right back in that hadji's face -then bailed, and I never set foot in any Subwaste/Subgay joint ever since !!
I stopped at Wienerschnitzel to get chili cheese dogs and seen they had a pastrami sandwich on the menu for less than $4.00 so I tried one...Man they have the killer bomb pastrami and it is sooo good, plus way better price than Subwaste too.
Twice as better sandwich with 60% cheaper price !!!
Chromer your absolutely right but do you really think that the two names conflict in any major way? My thought is, can you imagine how many Maria's Pizzerias there are around the country... Some in the same town/ city... Everything is business as usual there... Seems like more of a waste of time & money then its worth
AKsilvereagle :
Sounds like you need some anger management training. It's not the fault of that dirt poor uneducated service kid that you were over charged. You probably asked for additional "toppings" which add to the price. A simple request in advance as to what you get for the five dollar menu could keep your blood pressure in tact, and save that poor fool the humiliation you made him/her feel...
This thread has probably died by now. But I checked back in myself, to see that James P Reza repeated his assertion with, "trademark law still requires the holder of the trademark to defend it. This isn't an 'opinion' -- it's trademark law."
You'll have to show me where in federal trademark law it "REQUIRES the holder of the trademark to defend it." Or please show me that part of the law which states, as you previously put it, "the holder of a trademark (must) defend it or it is CONSIDERED ABANDONED."
I know there's plenty of paid-for laws on the books of this country, representing the best interests of those with the mightiest legal and lobbyist teams. But I can't believe that the above can be found in the Lanham Act, or similar. Am I wrong???
Subway was not, and is not, a generic term. I don't understand how adding one word to the end of a well known, trademarked product won't be considered infringement. Imagine if it was "Jack in the Box Avenue" or "Burger King Avenue", or or "Pepsi Cola Avenue".
ThisOneGuy,
First of all, I must take exceptions to your examples. What is a "subway?" Then, "what is a Pepsi?" Perhaps, in American society we have come to accept that a perfectly common word like "subway" can be usurped from the people's lexicon and become the property of a private interest. But if that's the case, then the push back is well overdue. Otherwise, where does this end? VegasGM85 correctly posit's the question of "Maria's Pizza." For that matter, how about "Mama's Pizza?" This nonsense in contemporary American society that nobody else may now use the word "subway;" or, say, that nobody else may now say "that's hot" for commercial purposes (because Paris Hilton now owns the trademark to "that's hot") is simply WRONG.
Okay, if somebody comes along and tries to fraudulently claim that their sandwich shop IS a "Subway" shop, I can see the public interest in preventing that confusion. (And it is this, the public interest in preventing confusion or deception IN THE MIND OF THE CUSTOMER, which is why trademark law was created.) But I would reject that the word "subway," which has commonly existed in the English language for about a century now, cannot be combined with other words and then used.
Now, the practice of allowing creators of completely new and unique words which never before existed, to have exclusive rights to these words, is something I believe most people accept and appreciate. "Pepsi" would be an example of that. Across generations and cultures, I think that passes the sniff test.
But civilization has survived just fine without the ridiculous and oppressive tactics of the modern day American corporate trademark attorney. I realize the likely response to this is that, "modern society requires the aggressive protection of intellectual property." This is opens up an entire can of worms I will not get into here. But just allow me to say that much of the rest of the world will not buy into this mostly Anglo-American contrivance. Shackles on "words" and "ideas" are becoming increasingly passe and impossible enforce anyway. Clinging to these 20th century, restrictive notions which favor the economic interests of a few -at the expense of the many- will only retard American development. A new paradigm is coming. We either accept it, or we'll be left behind by history.
Subway, in reference to sandwiches, is a unique term. It was a play on 'Submarine sandwich' - Submarine sandwich was not trademarked and is now a generic term, so that term is fair game. Subway would not, and could not, sue if someone built an underground train and labeled it a subway. But we are talking about sandwiches here, not exactly apples and oranges.
I understand the problem(s) with a lot of intellectual property law(s) and I think that there are a lot of changes that need to be made, but I really feel that creativity has to be protected at some level.
In response to AKsilvereagle, can you read? All footlongs are not $5.00. That was a limited time offer run maybe twice per calandar year. Each store, belongs to a separate individual market (which Las Vegas) is one of and supports differant value offers and messages. The next time you want to go and assault someone just trying to make a living, read the POP 1st! SUBWAY ownwers have a right to make a living! Profit is not a dirty word in case you didn't know. I would love to know what you do for a living, if anything at all! Enjoy your sandwich from Wienerschnitzel, at those prices they won't be around very long. Deep discounts like that are rarely substainable for the long term. The price point is a way to get customer's in the door, in hopes that they will purchae other more profitable items. But I doubt someone as "frugal" as yourself, would even buy additional items! SUBWAY has a right to protect it's copywite, trandmarks and such. If Mr. Boyadzhyan has a quality product and feels that it can stand on it's own, then why does he even risk problems and name it Subway Ave? Huh? He knows what he's doing. Trying to cash in on a 44 year old Brand! Let him go out and build his own business, with his own name, employ 1000's of people worldwide, open 31,000+ stores and franchisee the rights. Good luck to him! And if and when he does do all that, I'm sure he would be on the phone to his lawyer in a second if he found out that someone was using a likeness thereof of his brand logo or name! Most SUBWAY Restaurants offer quality and value at an affordable price. Nobody forces anybody to eat there! But millions of people do just that everyday. The sucess speaks for itself. Note: the 1st SUBWAY restaurant opened in Bridgeport, CT in 1965, not the 70's. Ignorance is not an excuse Mr. AKsilvereagle.........Have a nice day..:)
I searched the definition of Subway and this is what came up: Subway, an underground rapid transit system also known as a metro, underground, T-bane, MRT (Mass Rapid Transit), tube, or U-Bahn. It is not a unique word like yahoo or google, so everyone should be able to use it. I hope the restaurant owner has enough money to counterclaim and punish these idiots. Lawyers get paid by the empire and sue knowing that a small restaurant owner will not be able to defend himself. There will be trademark violation only if they used the same name "SUBWAY." This is ridiculous. If I trademark the word "Bell," can I sue "Taco Bell" or if I trademark "cheesecake," can I sue "Cheesecake Factory." They are going too far.