When is a burrito a sandwich? Delicious adventures in IP law.

Joe Szilagyi, Flickr

Slap the filling of your choice between two pieces of bread. Voila! Sandwich. So says a judge, a strict sandwich constructionist, in a case pitting Panera Bread against Qdoba Mexican Grill in a cautionary tale for startups in highly competitive markets.

Mike Masnick at TechDirt riffs on an earlier story by GOOD about the sandwich fisticuffs over exclusive lease rights in a shopping center and conflicting federal regulator definitions of sandwichness.

Amanda Hess writes:

Can a food become a sandwich simply by calling itself a sandwich? Does an open-faced sandwich constitute a sandwich, despite the lack of sandwiching employed in its construction? If so, is bruschetta a sandwich? Buttered toast? Pizza?

What if you fold the pizza in half? Must the unifying exterior item be split in two in order to constitute a sandwich? Is a hot dog a sandwich? A submarine roll split in the middle, but with a hinge still hanging on? Is an omelete a sandwich?

A note on methodology: Is it necessary to consume the sandwich with one’s own two hands? If one were to douse a sandwich in gravy, would it neutralize the sandwich, converting it into nothing more than a bread-based entree?

If we’ll accept a hinge in a sandwich, what about a filling that’s encased on two sides? On all sides? Is a kolache a sandwich? A pasty? A corn dog? A calzone? An egg roll? A dumpling? A pop tart? Is a wrap a sandwich?

Is a burrito a sandwich?

Masnick argues that a simple common sense concept, such as sandwich-y construction, can have much more complex implications under the law.

Keep that in mind as Congress debates new federal legislation (E-PARASITE or PROTECT-IP, pick your poison) requiring ISPs to monitor and block websites for alleged acts of copyright infringement.