How special must a sandwich be to count as protected intellectual property?

By Tim Nelson
Updated February 13, 2018
EC: Should This Sandwich Be Copyrighted?
Credit: photo courtesy of staggering ox via facebook

Intellectual property law exists for a reason. It’s what keeps artists, authors, and inventors of all stripes from having their work ripped off. While the concept of what can be protected is usually pretty clear-cut, one recent instance of alleged sandwich forgery has some wondering just how a copyright case could be applied in the food world.

This tasty legal drama can be traced back to Half Brothers Brewing Co., a Grand Forks, North Dakota watering hole. Because the brewery is housed in a former bakery, Half Bros founder Chris Gunderson decided to fire up the oven to prepare a new sandwich called “The Silo”, a spiritual homage to the Clubfoot sandwich served up by Montana sandwich chain Staggering Ox. Both sandwiches share a common construction, with the bread acting as a sort of vertical, cuplike vessel that houses the main ingredients.

It seemed like a brilliant homage right up until the point that Staggering Ox called up Gunderson and requested that Gunderson stop selling The Silo, due to an existing trademark claim that the Montanan sandwich shop filed for the Clubfoot. While Gunderson said the only logical choice was to comply with the cease and desist order, it certainly has some wondering what jurisdiction a given restaurant has over its proprietary arrangement of bread, meat, and condiments.

According to intellectual property experts, this one seems to be a “case” that hinges on the subtle but significant difference between a copyright and a trademark. While Staggering Ox seems to have trademarked the name of the Clubfoot, they don’t have an actual copyright that gives them sole ownership over the idea of a sandwich with cylindrical breading.

Getting that copyrighted wouldn’t be easy, either, according to intellectual property lawyer Dahlia Saper: “If there’s a weird, very unique artistic element that they can separate from the food itself, then maybe they have a claim,” she told The Takeout, “but those [claims] are typically very hard to prove.”

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Credit: Image Courtesy Half Brothers Brewing Co Via Facebook

The problem stems from the fact that there isn’t much precedent for protecting copyright claims in the culinary world. Even big-name chefs like Thomas Keller and David Chang haven’t been able to stop the spread of copycat dishes, and Dominique Ansel can’t stop Dunkin’ Donuts from selling a “Croissant Donut” that piggybacks on the cronut baker’s intellectual property.

If Staggering Ox wanted to win a hypothetical court case, they’d have to prove that the Clubfoot is a uniquely artistic creation with a “bun” that does more than simply hold ingredients together.

“The idea, for example, of putting lettuce around a sandwich and using that as a bun, that’s a way of making a sandwich. You can’t protect that,” Saper said. “But if the bread that you use has someone painstakingly putting a gold and frosting design on it, or something, that might be art that’s separate from the element of the food and might be copyrightable.”

That certainly seems like it would make for an interesting legal argument. For now, we can only hope to someday see a similar food-based intellectual property case argued before the Supreme Court, helping us to arrive at a definition of what exactly constitutes a sandwich once and for all.