Wednesday, February 16, 2011

In Which I Connect "Footlong" Sandwiches and Victorian Pain Killers!

An interesting bit of business news has been on the wires the past few days regardinga dispute between the Subway chain of sandwhich shops and Casey's general stores over the use of the word "footlong" to describe their sandwiches. A summary of the dispute can be found in an excerpt from the UPI story below (full story here):

An Iowa store chain is suing Subway restaurants for the international chain's claimed exclusive rights to using the word "footlong" in promoting sandwiches.

Casey's General Stores of Ankeny [Iowa] challenging Subway for the right to use "footlong" on its signs and menus, the Des Moines (Iowa) Register reported Monday.

The lawsuit is asking the judge to rule "footlong" is a generic term that does not violate Subway's trademark. The suit also seeks unspecified damages for the "frivolous" claims made by Subway.

In the end, the question comes down to whether footlong is an adjective - describing any such sandwich - or a noun, describing Subway's (or Casey's, for that matter), sandwich in particular.

Well, as with so many things, you can put this in the "The-More-Things-Change-The-More-They-Stay-The-Same" category...and - befitting this blog - there is an interesting connection with 19th-century medicine!

So, here's the story:

One of the most popular quack/patent medicines of the Civil War era was Perry Davis' Pain Killer. Davis (1791-1862) - a Massachusetts grain mill operator - developed the formula for his medicine in 1839 and began to make and advertise it. He later moved to Providence, Rhode Island, and was joined by his son, Edmund, in the business. By theearly 1850s, Davis' "Pain Killer" was a great success, with sales in New England, Canada, and the explanding American West. Davis died in 1862, leaving the company in the direction of his son. As with many patent medicines, the Pain Killer claimed to remedy a variety of ills and was composed of a questonable mixture of alcohol, opium, camphor, myrrh, pepper, and other ingredients.

Now to the "footlong" connection!

Here is the beginning of a typical wartime (1862) newspaper ad for Davis' painkiller (notice the clever wartime "The Great Union Saver" tagline and the appeals to army sutlers and "every volunteer"!):

But notice also the end of the ad (after several column inches of claims and testimonials):

That's right...they took their name "Pain Killer" so seriously that the end of every advertisment warned other medicine makers of legal action for appropriating the name.

But they didn't stop there!

In 1861, they also published a pamphlet: A Short Treatise on the Law of Trade Marks: Interesting to Manufacturers and Merchants Generally. I have an original in my own collection of patent medicine ephemera.

I've put some a scan of the front cover from my booklet above; you can read the full text at Google Books (here).

In short, Perry Davis made the claim that "Pain Killer" was a new word:

"The name Pain-killer he adopted as the name of the medicine, and to denote his manufacture. It is a compound name, formed from two distinct words; was entirely original with Mr. Davis, and never before used by any other party. He adopted this as his trade mark, and his medicine has ever since been known in commerce as Pain-killer. The most common error, and one into which many have fallen in regard to the name Pain-killer, is the supposition that it is a name common in the English language, to which every one has a right, and that no party can, in law or equity, appropriate it to his exclusive use, as designating his medicine. The fact is not so, but wholly otherwise. The name was not known in the English language until formed by Mr. Davis, and by him applied to a medicine. Neither Webster nor Worcester mention it, nor any other authority that we have consulted."

The bulk of the book is a short history of trade marks - and more important - a summary of case law in Davis' favor (in the state courts, at least). The book ends with a polite - and not-so-subtle - warning to competitors:

"Although we are not desirous of entering into lawsuits with any one, yet we owe a duty to ourselves and to the public, and that duty is to protect our rights to the name Pain-killer, as our trade mark...For this purpose we have all the law and equity on our side. We have the will and disposition, if necessary, and we have the money. In short, we have every requisite necessary to protect.our rights, and we hereby give Notice that we shall prosecute, to the extent of the law, any party using the name Pain-killer in any way as applied to a medicine. The law provides for the protection of our rights, and we must apply it when other and more agreeable means fail. J. N. Harris & Co., of Cincinnati, Ohio, are duly authorized to use our name in the prosecution for any infringement."

In closing:

First, some additional research demonstrates this booklet was by no means the end of the story; other manufacturers - in America and abroad - sought their own legal remedies to prevent solely Davis from using the term (noun!), arguing that it hurt their busines to not be able to describe (adjective!) their own medicines by the same term.

Second, this is also the reason why I am so fascinated by 19th-century patent medicines! The subject cuts across so many other areas: medicine, advertising, collecting, popular culture, philately, biography, invention, revenue, and the law! (and much more!)

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