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Coffee giant ponders 'Dumb Starbucks' response as lawyers say PR is at stake
'Dumb Starbucks': comedian Nathan Fielder reveals he set up parody store
(about 4 hours later)
A parody coffee shop called Dumb Starbucks, which has caused a stir in Los Angeles, has stretched the first amendment’s protection of parody and probably violated the real Starbucks’ trademark, according to legal experts.
The comedian Nathan
The cafe opened in the Los Feliz neighbourhood last week, mimicking the Starbucks logo, décor and menu but prefixing offerings with the word “dumb”, in an apparent artistic enterprise. Long lines formed as word spread on the street and social media, drawing the curious and those wanting free coffee – the outlet did not charge.
Fielder has outed himself as the man behind a parody coffee shop
A fact sheet posted inside the shop explained its rationale: “We are simply using their name and logo for marketing purposes. 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’.”
called Dumb Starbucks that appeared to throw down a gauntlet to the
It continued: “Although we are a fully functioning coffee shop, for legal reasons Dumb Starbucks needs to be categorised 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 considered the art. But that’s for our lawyers to worry about. All you need to do is enjoy our delicious coffee!”
real Starbucks.
The star of the Comedy
Central show Nathan For You gave a press conference at the Los
Angeles outlet on Monday revealing the scheme was a TV stunt
rather than an art installation or business start-up.
The cafe opened in the
Los Feliz neighbourhood last Friday, mimicking the Starbucks logo,
decor and menu but prefixing offerings with the word “dumb”.
Long lines formed as
word spread on the street and social media, prompting debate over
whether it was Banksy-style pop-up art or an entrepreneur’s audacious
attempt to simultaneousy mock and purloin the Starbucks brand.
Starbucks said in a statement it was aware of the store, which was not affiliated. The statement said: “We are evaluating next steps and while we appreciate the humour, they cannot use our name, which is a protected trademark.”
Starbucks said in a statement it was aware of the store, which was not affiliated. The statement said: “We are evaluating next steps and while we appreciate the humour, they cannot use our name, which is a protected trademark.”
Three Los Angeles-based lawyers from different firms specialising in trademarks and intellectual property law told the Guardian the store appeared to have stretched the first amendment – but that Starbucks faced a public relations dilemma in how to respond.
By Monday afternoon
Starbucks would probably win a trademark dilution claim on the grounds of damage to its goodwill and reputation, said Melissa Dagodag, who cited a federal court precedent in Maine.
digging by the Associated Press and others linked the site, in the corner of a strip
“I believe if the case is taken to court,” she said, “the court may be very likely to issue a permanent injunction against the operating of a coffee shop under the name Dumb Starbucks.”
mall, to Fielder’s production company, Abso Lutely Productions.
Before taking action, Starbucks would have to weigh the potential for negative publicity, said Dagodag. She guessed the company would go to court: “Trademark owners have a duty to ‘police their marks’, which means they cannot let someone use a potentially infringing mark without taking action. Otherwise, they may lose some of their trademark rights.”
He ended the
Joseph Mandour, of Mandour & Associates, said to qualify as a parody – and thus avoid trademark infringement – it would have to be clear the Dumb Starbucks store was not associated in any way with the real chain, which has 20,000 outlets worldwide. “In this case, Starbucks can definitely argue that some consumers might think this is a real Starbucks, or at a minimum that it is somehow related to the real Starbucks.”
speculation by uploading a video in which he appeared as a barista
The case for a parody defence was “definitely questionable” but pursuing those behind Dumb Starbucks in court was as much a question of public relations as legal concerns, said Mandour.
and declared himself the founder and president of Dumb Starbucks.
“I think Starbucks obviously won’t want this to continue,” he said, “but Starbucks recently lost a long battle against Charbucks where Starbuck’s aggressiveness in the litigation against a small company was a turn off to the public. The difference in this case is that Dumb Starbucks has copied so many aspects of Starbucks that the Starbucks trademark is at a real risk of dilution.”
“Many of you probably know me as a comedian. But this is no
Rod Berman, a veteran intellectual property attorney with Jeffer Mangels Butler & Mitchell, said the fact the Dumb Starbucks so far appeared not be selling coffee could help it cite first amendment protection, in which Starbucks might need a survey questionnaire of customers to demonstrate that the store was expressly misleading the public.
joke. This is a real business I plan to get rich from. But I need
Berman noted that Andy Warhol successfully used images of Campbell soup cans and that MCA Entertainment beat a lawsuit by Mattel, the toy maker, which claimed the 1997 pop hit Barbie Girl infringed trademark and sullied the reputation of Barbie.
your support.”
The fake Starbucks, however, has raised the bar by mimicking not just the logo but the chain’s entire look and feel. If Starbucks took a case and lost that could pave the way for similar Dumb stores opening elsewhere, said Berman.
Keeping a straight face
The Los Feliz outlet, sited beside a laundromat in a strip mall, continued to draw long lines on Monday, with some waiting more than an hour to be served by two baristas who reportedly said they were hired via Craigslist.
at a press conference outside he continued in the same
The shop’s menu mimics Starbucks with the word “dumb” appearing before each item: dumb espresso, dumb brewed coffee, dumb tea, dumb caffè latte, dumb frappuccino. Drinks come in dumb tall, dumb grande and dumb venti sizes.
vein. “I’m proud to announce we’ll be opening our second
After just four tweets the store’s Twitter account, @dumbstarbucks, acquired more than 7,000 followers. Some wondered if it was a prank or a Banksy-style art installation.
Starbucks in Brooklyn, New York soon … This really caught on so I’m
The store did not respond to a request for comment.
going to ride it out.”
A rather large question
mark hung over that ambition: the stunt will be included in
the Nathan for You docu-reality series, which stages public hoaxes.
Plus, legal experts said the outlet stretched the first amendment’s
protection of parody and probably violated the real Starbucks
trademark.
A fact sheet posted
inside the shop claimed that by adding the word “dumb” it was
technically making fun of Starbucks and so could use their trademarks
under a law known as fair use.
“Dumb Starbucks needs
to be categorised 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 considered the art. But that’s for
our lawyers to worry about. All you need to do is enjoy our delicious
coffee!”
The store was closed by
6pm local time, disappointing would-be customers outside.
On Twitter many saluted
what they called a clever publicity stunt. “Somehow both the most
idiotic and brilliant thing ever,” tweeted @jackie527
If the store reopens
or if Fielder tries to open a second outlet he will likely face legal
challenge from the Seattle-based corporation.
Starbucks would
probably win a trademark dilution claim on the grounds of damage to
its goodwill and reputation, said Melissa Dagodag, a lawyer
specialised in intellectual property. “I believe if the case is
taken to court,” she said, “the court may be very likely to issue
a permanent injunction against the operating of a coffee shop under
the name Dumb Starbucks.”
Joseph Mandour, an
attorney with Mandour & Associates, said to qualify as a parody –
and thus avoid trademark infringement – it would have to be clear
the Dumb Starbucks store was not associated in any way with the real
chain, which has 20,000 outlets worldwide. “In this case Starbucks
can definitely argue that some consumers might think this is a real
Starbucks, or at a minimum that it is somehow related to the real
