It is difficult to obtain rights to a proposed trademark where it is “descriptive” of the product. For example: Spicy Salsa, or Superfast Internet Service. If the public begins to associate the mark with the goods or services provided by the business, such a descriptive mark obtains “secondary meaning” and might be able to be registered with the USPTO.
Subway has been prosecuting the right to the exclusive use of “footlong” in relation to its sandwiches, which on first blush appears to be at least descriptive, and maybe even a generic, term. Apparently, the USPTO has made a preliminary finding that due to Subway’s extensive marketing campaign, “secondary meaning” has been implanted in the minds of the sandwich-eating public, and the mark might be protectable. Of course, competitors are contesting registration of the mark, claiming that “footlong” is generic for a sandwich 12″ in length. I see a problem for all “foot long” hot dog sellers and hoagie shops in the future if Subway obtains registration. Personally, I think Subway is measuring the merits of its claim with a bit too much confidence.