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Lazy Lawyer Loses Subway Case

Even a low burden of proof requires some effort.

In-house counsel for Subway Sandwiches brought a complaint against the website "MySubwayRewards.Com"

The website kept changing its graphics, but a recent viewing does indicate a likelihood of confusion with an official Subway website: the browser tab even reads "Official Subway Rewards."

In addition, this site is one of several owned by a company which trolls the Internet for personal credit information--the company states that it will periodically debit small amounts from your credit card and then re-credit them in order to make sure that it always has your correct credit card information.

In other words, this is precisely the sort of counterfeit website that gives the Subway franchise system a bad name.

But in a ruling on April 6, 2010 the World International Property Organization (WIPO) arbitrator ruled against Subway, noting that:

Although the burden of proof under the first element is not a high one [cite omitted] the Panel considers that it is nevertheless incumbent on a complainant to make its case as to identity or confusing similarity. To conclude that the domain name <> has been shown on the limited pleadings submitted to be identical or confusingly similar to the mark SUBWAY requires a leap that this Panel is not comfortable making.

Making matters more embarrasing for attorney Valerie Pochron is the fact that she lost her case even though the other side didn't bother answering the complaint.

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