NY Times: “Can A Sandwich Be Slandered?

Quiznos, the toasted-sandwich chain, [invited] 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.

My Moses & Singer colleague and America’s sweetheart advertising lawyer, Myka Todman, observes:
“Consumer generated content such as this blurs the distinction between commercial content created by advertisers and non-commercial content created by consumers and posted, for example, on blogs.
Because claims made by an advertiser must be substantiated, may not false or misleading and must comply with various state and federal laws, inviting consumers to create content or ads (like those at issue here) presents a host of problems when the content infringes a competitor’s trademark, contains product claims, defamatory statements, etc.
Should Section 230 immunity apply in a situation such as this? How uninvolved was Quiznos really? They requested the content, set forth the guidelines, paid the creator and ran the ad. As Bill Blackburn (creator of the ad in question and an advertiser himself) said in the article, it was clear what Quiznos wanted – he simply delivered the commercial that Quiznos couldn’t.”