By Mengyi Wang – Edited by Sarah O'Loughlin
[caption id="attachment_4024" align="alignleft" width="150"] Photo By: C D - CC BY 2.0[/caption]
Last weekend, Los Angeles residents stood in line to taste free coffee at a new coffee shop in town: “Dumb Starbucks.” The stunt was later discovered to have been orchestrated by Comedy Central comedian Nathan Fielder, Quartz reports. Although short-lived—the shop was shut down by the Los Angeles Health Department for operating without a health permit— Dumb Starbucks drew considerable attention and raised an array of legal issues.
According to The Wall Street Journal, Dumb Starbucks opened on Friday, February 7. The shop was identical to a real Starbucks shop except that the word “dumb” affixed to everything in sight. The shop offered, for free, items including “Dumb Vanilla Blonde Roast,” “Dumb Chai Tea Latte,” and “Dumb Caramel Macchiato” in sizes “Dumb Venti,” “Dumb Grande,” and “Dumb Tall.” The CDs sitting on a shelf by the cash register included “Dumb Jazz Standards,” “Dumb Norah Jones Duets”, and “A Dumb Taste of Cuba.” The “dumb” theme also extended to its logo, with “dumb” inserted into the outer ring of the Starbucks logo, reports Time.
Anticipating potential legal disputes and trademark infringement claims, the shop’s “frequently asked questions” handout explicitly stated that Dumb Starbucks was not affiliated with Starbucks and that parody law and the fair use doctrine shielded it from legal liability. The Guardian backs Dumb Starbucks’s position on the trademark front. It opines that since a spokeswoman for the real Starbucks coffee chain admitted that the store “obviously” was not a Starbucks, the likelihood of consumer confusion cannot be established. The obvious lack of a formal relationship between Starbucks and Dumb Starbucks also renders a trademark dilution claim less viable under the parody defense elaborated in Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC., 507 F.3d 252 (4th Cir. 2007) hosted by scholar.google.com. Jonathan E. Moskin, IP partner with Foley & Lardner, added in an email that Dumb Starbucks’ defense is buttressed by its non-commercial nature.
Others considered the trademark issues more nuanced. In an interview with USA Today, Notre Dame law professor Mark McKenna contended that the legality would hinge on whether the word “dumb” sufficiently disclaimed association with the real Starbucks and conveyed parody. Moreover, International Business Times points out that Dumb Starbucks may have undermined the strength of its parody defense when it claimed in its FAQ sheet that its primary goal was marketing, as opposed to social commentary. The legal uncertainties in this case lay against a backdrop of inconsistent outcomes in trademark parody cases, as mentioned in Moskin’s email.
Aside from the legal merits, commentators offer mixed messages on whether Starbucks should pursue legal action. Citing previous public backlash generated by Starbucks’s suits against comic book artist Kieren Dwyer and a small brewery serving “Frappicino,” Quartz advises Starbucks to leave the stunt alone. On the other hand, as The Guardian suggests, the trademark system puts the burden of policing infringement on trademark owners, and Starbucks would risk losing its trademark if it were to take no action.
For further reading and background information about Dumb Starbucks’ smash debut, see the Los Angeles Times, The Wall Street Journal, Time, NBC, and Quartz. USA Today, The Guardian, International Business Times, and The Christian Science Monitor also feature legal and strategic analyses.