Dumb Starbucks – Smart or dumb?
Last month “Dumb Starbucks Coffee” appeared just over a weekend in Los Angeles, created by comedian Nathan Fielder from Comedy Central, and not surprisingly, it has enjoyed much publicity ever since. Despite its shut down on the 10th of February for operating without a valid public health permit, the legal consequences of the creation of Dumb Starbucks remain uncertain.
Aside from adding the word “Dumb,” the coffee shop not only uses the same name and logo but also looks identical to the original Starbucks Coffee Shop.
It might not be a surprise that Starbucks is not amused. A spokeswoman of Starbucks said “we appreciate the humor, but they can’t use our name, which is a protected trademark.” People behind Dumb Starbucks disagree and call it a parody of Starbucks, protected by the fair use defense.
In a FAQ sheet posted inside the store, the creators state: “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!”
Parody is generally a protected form of speech. However, there is no clear legal definition of what is actually legitimate and what constitutes trademark infringement. The message of Dumb Starbucks regarding the parody is not exactly clear and the creator of Dumb Starbucks admitted already that he is using their name and logo for marketing purposes. In fact, they say “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.”
The only fact favoring the fair use defense is that Dumb Starbuck is giving away free coffee and the less commercially driven the parody the bigger the chances of being protected under the fair use doctrine. On the other hand Dumb Starbucks sells CD’s and other items that suggest a commercially driven intention for the shop.
Furthermore, an important factor in deciding whether the law protects a parody involves whether the parody would likely cause customer confusion. Considering the fact that the entire appearance of Dumb Starbucks is identical to Starbucks and the word ‘Dumb’ is relatively small it is likely that a person passing or driving by might not even notice the word ‘dumb’ and believe wrongfully that the store is in fact Starbucks.
However, chances are a court would probably rule against Dumb Starbucks. The fact that the Starbucks trademark was abundantly used, the fact that Dumb Starbucks admittedly used a loophole of parody to get away with using someone else’s trademark for a different purpose and the fact that letting Dumb Starbucks keep the name and trade dress would create a slippery slope for the use of trademarks by simply claiming parody weigh against it having any success at court.