“DUMB STARBUCKS”: Grasping at laws.

Dumb StarbucksYour blawger, he is conflicted. Part of me does not want to give the—ahem—geniuses behind the DUMB STARBUCKS stunt any more press, but the rest of me feels that you, our readers, deserve to know at least my opinion, which is that there is no way in Hades that the aforementioned—ahem—geniuses will be able to survive any attempt by the real Starbucks to shut down their pretend art installation masquerading (poorly) as social commentary that is really just a pop-up cafe blatant ripping off the latter’s registered trademarks. There, I said it.

If you haven’t already heard: A “parody” [see here for a sort of primer from the LOC archives -- RDC] coffee shop sprung up in Los Feliz, California (of course), called DUMB STARBUCKS. According to the Los Angeles Times, “Walking into the… unit, which over the weekend drew long lines while offering free joe, is like entering a real Starbucks, except that almost every label and circular logo inside also features the word ‘dumb.’”

I. MDB.

Caffeinated and conflicted.

A sign at the store, printed on stationary topped with the DUMB STARBUCKS logo, offered answers to “frequently asked questions.” If this isn’t a prank that ends soon, then this flyer will be Exhibit 1 of the plaintiff in the trademark infringement lawsuit that Starbucks brings, because the statements made on the FAQ sheet damn the dumb undeniably.

Is this a Starbucks? No. Dumb Starbucks is not affiliated in any way with Starbucks Corporation. We are simply using their name and logo for marketing purposes.

Um, okay. So you admit right out of the gate that you are marketing something—coffee products, obviously, in direct competition with the company whose registered trademarks you also admit you are using, without permission (that’s implied).

How is that legal? Short answer – parody law.

Putting aside for the nonce that there really is no such animal as “parody law,” that’s an interesting short answer. The FAQ elaborates: 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’. Fair use is a doctrine that permits use of copyrighted material in a parodical work without permission from the rights holder. It’s the same law that allows Weird Al Yankovic to use the music from Michael Jackson’s “Beat It” in his parody song “Eat It.”

I hardly know where to begin.

If you’re admitting that you’re “technically” making fun of something, then you’re never going to convince a judge or jury or me that you were genuinely attempting to make any real fun. Rather, you’re admittedly trying to exploit a doctrine that you sometimes call a law, which you evidently do not understand at all. Indeed, you’re referring to a copyright law doctrine, but you’re infringing on trademarks. (Sure, those trademarks are protected as well by copyright, but this isn’t a copyright matter.) And, worst of all (not really), you’ve drug Weird Al into this, when everyone knows that Weird Al does not invoke the doctrine of fair use to avoid getting permission to record his parody songs. Weird Al always, always gets permission.

So this is a real business? Yes it is.

Good to know. Because your revenues are going to be turned over to Starbucks Corporation soon.

Are you saying Starbucks is dumb? Not at all. In fact, we love Starbucks and look up to them…

Make it stop. It hurts. It hurts! You just… you just admitted that… I can’t continue. This is just too dumb. Fortunately, Starbucks Corporation is “aware” of this—ahem—hilarious parody and is “looking into it.”

Oh, also, as of yesterday, the establishment reportedly did not appear to have a business license. But that’s probably also okay under parody law.

 

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10 Responses to ““DUMB STARBUCKS”: Grasping at laws.”

  1. February 10, 2014 at 3:28 pm #

    Hm. Ron, you really think there’s a case to be made that this is a permissible parody? Even in light of the admissions that nothing here is actually being “made fun of”? And in any event, while fair use (by parody) of a work protected by copyright requires finding some commentary on the original… this is a trademark issue, where fair use is harder to find. And even if the analysis is different, I keep coming back to this: These pranksters stated on posted flyers that they “love Starbucks…”! If these guys are for real, as it were, and don’t already have a lawyer, they’re going to need one soon.

  2. Dave Tepper
    February 10, 2014 at 5:42 pm #

    Well, the next question is, what revenues, let alone what profits, if they’re giving everything away for free?

  3. February 10, 2014 at 5:45 pm #

    Yes, Dave, but… the signage in the store suggests that something will be sold… if this isn’t indeed just a pop-up prank. Of course, if there are no revenues… and this nonsense gets shut down soon by Shia LaBoeuf or whomever is behind it and doesn’t really understand parody or comedy… then Starbucks would be hard-pressed to sue for anything. But if, unlikely as it seems, this is a legitimate (er…) business attempt and not just an ill-advised art project, then there will be revenues, and then there will be a reckoning.

  4. February 11, 2014 at 4:55 pm #

    I came around to the “no parody” position, actually, because, as we discussed over Twitter, there was no parody.

  5. Kae
    February 11, 2014 at 6:02 pm #

    And then we have Megan Adams, a Starbucks spokeswoman, stating, “It’s obviously not a Starbucks.” Doesn’t help SB in arguing likelihood of confusion!

  6. February 11, 2014 at 6:11 pm #

    Brilliant! I hadn’t even thought of how utterly stupid such an official statement is.

    Of course, now we know that the whole thing was a stunt for a comedian’s television show… but I’m still using this fact pattern for the final exam my students are getting this summer.

  7. articuno
    February 13, 2014 at 10:15 am #

    Maybe the letter is part of the act. One giant trolling to help this go viral amongst lawyers. It’s just too perfectly wrong.

  8. February 13, 2014 at 10:19 am #

    “Perfectly wrong” is a perfect way to describe this situation. It was an orgy of missteps. A faux pas de toute.

Trackbacks/Pingbacks

  1. “DUMB STARBUCKS” – a fake parody « IP Legal Freebies Blog - February 13, 2014

    […] How was this permissible?  Short answer, it wasn’t.  Parody was being claimed although this was not a parody.  Folks often think that just because something is FUNNY it is legally a PARODY.  This is a not the case.  FUNNY ? PARODY.  Because this is such a common assumption it’s a worthy to mention it again (and again, and again).  For a terrific analysis of the DUMB STARBUCKS parody claim see my friend Ron’s blog post on http://www.likelihoodofconfusion.com. […]

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