As we speak, the legal team at Starbucks Corporation (NASDAQ:SBUX) is roasting over Dumb Starbucks, a quasi-coffee shop that popped up in Los Angeles on Friday and has been enjoying steady buzz on social media ever since.
In a phone call, a spokesman for the Seattle-based coffee giant told IBTimes that the company is evaluating its next move, although he would not speculate on what that move will be. He made it clear, however, that Starbucks is not happy about the parody shop’s name and logo, which, aside from inserting the word “Dumb,” looks identical to the original, right down to the clunky sans-serif typeface and familiar green-and-white siren.
“We appreciate the humor, but they can’t use our name, which is a protected trademark,” the spokesman said.
The people behind Dumb Starbucks, who appear to be a mystery at present, disagree. In a FAQ sheet posted inside the store, the creators compare their shop to the work of the famed parodist Weird Al Yankovic, calling it an “art gallery,” a parody, and therefore protected under fair use:
“Although we are a fully functioning coffee shop, for legal reasons Dumb Starbucks needs to be categorized as a work of parody art. So, in the eyes of the law, our ‘coffee shop’ is actually an art gallery and the ‘coffee’ you're buying is actually the art. But that's for our lawyers to worry about. All you need to do is enjoy our delicious coffee!”
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Lawyers who specialize in trademark and copyright law say not so fast. While parody is generally a protected form of speech, there is no clear-cut legal definition of what separates legitimate parody from trademark infringement. The reality is, any infringement case that makes its way into a courtroom will be evaluated on its own merits, with judges weighing various factors against a body of existing legal precedents. Historically, cases could go either way.
“Parody is really tricky,” said Leslie J. Lott, a founding partner of Lott & Fisher in Coral Gables, Fla., which specializes in intellectual property litigation. “You’re making a joke based on the original trademark owner, so the parody you come up with has to bring to mind the original, or there’s no joke. But if you don’t make it clear to people that you’re not really Starbucks -- that you’re making fun of Starbucks -- then you failed as a parodist, comedically and legally.”
At first blush, Dumb Starbucks could come off as a brilliant comment on gentrification and demise of locally owned businesses, two issues that the shop’s trendy neighborhood of Los Feliz has experienced firsthand over the last few decades. At the same time, the shop’s creators have already willfully admitted that their principal aim is marketing, not social commentary. “We are simply using their name and logo for marketing purposes,” said the FAQ. “By adding the word ‘dumb’ we are technically ‘making fun’ of Starbucks, which allows us to use their trademarks under a law known as ‘fair use.’”
That distinction has not escaped the attention of some commentators on Twitter.
Hey @dumbstarbucks I think it's pretty dumb of you to admit in your FAQ that you are exploiting a loophole rather than actually making fun.
â€” Patrick Walling (@PatrickWalling) February 10, 2014
So did the ‘dumb’ baristas shoot themselves in the foot by revealing their motives? Jonathan E. Moskin, IP partner with Foley & Lardner in New York City, thinks it’s possible. “[S]ince what they are ‘selling’ is identical to what Starbucks sells and since they don’t seem to have a clear message, I could easily see Starbucks winning this dispute,” Moskin said in an email. “We also do not know what their real goal is, as it seems unlikely to be simply giving away free coffee and sweets indefinitely. That’s not a lasting model. The outcome may depend on what is their ultimate goal.”
Moskin added that the outcomes in trademark parody cases are “wildly inconsistent,” but that the shop’s case for parody could be helped by the fact that it’s giving the coffee away for free. “The ones with the best chance of success are non-commercial, which this exercise -- at least for now -- appears to be,” he said.
Both Moskin and Lott said one of the key factors in deciding a trademark parody case is whether the parody work is likely to cause confusion. That’s essentially why “Saturday Night Live,” for instance, can get away with spoofing every corporate entity under the sun -- everyone already knows the sketch-comedy show is making a joke. In the case of Dumb Starbucks, the world’s largest coffee company may decide to escalate the matter, putting the burden of humor on the unknown parodists, who may then have to prove that no potential Starbucks customers were lured in by their stunt.
“Somebody driving by on the street is going to glance up and see Starbucks,” Lott added. “The ‘dumb’ is really small. Once you confuse consumers, you’re infringing trademarks. It’s almost like that old saying, ‘If you’re going to take a shot at the king you’d better kill him.’”
Update 10:20 p.m., ET:
Comedy Central star Nathan Fielder has come forward as the person behind Dumb Starbucks, contending in a press conference that the shop is a protected parody under fair use. Less than an hour after Fielder’s press conference, the shop was reportedly closed down by the Los Angeles County Health Department for operating without a permit.