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Subway takes issue with Coney Island Drive Inn's 'footlong' hot dog

Blair Hensley always thought of the 1963 menu on the wall of his Coney Island Drive Inn as nothing more than a curiosity.

Now it might become legal evidence, especially the item called a "footlong'' that proves Coney Island was using this term 47 years ago.

As crazy as it might seem that a restaurant called the "Home of the Footlong'' has to establish that "footlong'' is part of its business identity, it really is a legal matter now. So Hensley might also have to add this to the file:

A 1968 photo of the restaurant with a period-appropriate Impala Super Sport parked out front and a sign overhead touting the drive-in's "World Famous Footlongs.''

"Footlong'' is the sign-in for Hensley's office computer. It's even in the restaurant's Web address: gotfootlongs.com.

"When I hear 'footlong,' I immediately think of Coney Island,'' said regular customer Michael Steele, 35. "Of course, it's the home of the footlong.''

Who could claim otherwise?

Executives at Subway headquarters in Milford, Conn. Arrogant executives, I should add, with a tin ear for public relations.

"You are hereby put on notice to cease and desist from using FOOTLONG in association with sandwiches. You must immediately remove all references to FOOTLONG in association with sandwiches,'' a lawyer for the company wrote in a letter that Hensley received Thursday.

The letter goes on to say that the Subway chain has applied to the U.S. Patent and Trademark Office for the exclusive right to use the term for its large-sized subs.

Hensley, 31, who bought the now 50-year-old restaurant in 2006, said his first reaction when he opened the letter was, "Are you kidding me?''

Then he realized he should call his lawyer, Sheada Madani of Dade City, who told him he really needed an attorney specializing in trademark law.

One of the lawyers she recommended, Dan Frijouf of Tampa, made it sound as though Hensley could have a strong case.

Yes, a corporation can claim the exclusive right to use a common word for its product, especially if it has a long history of spending advertising money to build the association.

But this claim is weakened if the term merely describes the product and if it is used widely by the public or other companies.

"Basically, this trademark is at best descriptive of a sandwich that is 12 inches long, and at worst it's a generic term for a sandwich that is 12 inches long,'' Frijouf said.

Who got there first can also be a factor, he said. Nobody from Subway returned calls Friday. But in previous news reports, Subway has claimed it started using the term "footlong'' in 1967, and, according to its website, the company didn't begin franchising restaurants until 1974.

Also, as Steele pointed out, most people don't use the word "footlongs'' for submarines at all.

"You either get a sub or you get a footlong hot dog. The two are very distinct,'' he said.

Still, if Hensley ignores Subway's letter, he could end up in federal court fighting a wealthy corporation, said Frijouf. "Sometimes it comes down to a business decision.''

Hensley hasn't decided what to do yet. But even consulting a lawyer will quickly consume the profits from Hensley's, um, most lengthy hotdogs, which sell for $2.40, with chili.

"This is going to cost me a lot of footlongs,'' Hensley said.

"It's corporate America trying to put it to the little man,'' Steele said.

True, but I get the feeling Coney Island will be fine.

Since he took over the restaurant, Hensley has managed to make it a whole lot better without seeming to change a thing.

The walls are covered with photos of Elvis, who one customer swears stopped by in a black Cadillac in 1961 during the filming of Follow that Dream in Citrus County, and carried out a bag of dogs. There are lots of artifacts to let you know you're in Brooksville, signs from Hogan's Rexall Drugs and Weeks Hardware and old Hernando High sports jerseys, including the one former baseball coach Ernie Chatman wore during a legendary 1993 game against a Miami team with a loaded roster that included Alex Rodriguez.

"It's almost like a class reunion every time you go in there. You're almost guaranteed you'll know somebody,'' said Jimmy Watler, 40, who eats there about four times a week. (And don't make cholesterol jokes, Watler said; Coney Island serves a killer taco salad.)

As for Subway? Well, though we should keep in mind that a lot of its franchisees are also little people, the company's letter to Hensley has some of his best customers talking boycott.

"The thing is, I also hit Subway two or three times a week for my son's lunch,'' Watler said. "I don't believe I'm going to do that anymore. I believe I'll get him his subs from Publix.''

Subway takes issue with Coney Island Drive Inn's 'footlong' hot dog 05/08/10 [Last modified: Thursday, May 13, 2010 3:19pm]
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