Why 'Dumb Starbucks' Is Probably Illegal

The bizarre “Dumb Starbucks” cafe in Los Angeles has assured the public it’s not violating trademark law, but a court would probably side with the real-life Starbucks were it to ever go to court.

“Dumb Starbucks” — which started serving coffee this weekend and is almost certainly some kind of gimmick — takes the Starbucks logo and looks almost exactly like the coffee chain. The only difference is that the word “dumb” precedes the name of the store and every coffee drink.

“This is a fairly bold use of the Starbucks logo,” Notre Dame law professor Mark McKenna told me. “What they’ve done is they’ve taken that word ‘dumb’ and they have basically copied everything.”

Here is “Dumb Starbucks'” legal defence of its strange new store:

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 Yancovik to use the music from Michael Jackson’s “Beat It” in his parody song “Eat It.”

The main problem with the “Dumb Starbucks” disclaimer is that it appears to be conflating copyright and trademark law. Both copyright and trademark law fall under the broad umbrella of intellectual property law, but cover different kinds of works and have different rules. Copyright covers books and songs like “Beat It” while trademark law often protects corporate logos like the Nike Swoosh.

Copyright law has a fairly explicit fair use exception, which the Supreme Court ruled in 1994 covers parodies. However, trademark law does not have an explicit exception for fair use (though some judges have ruled that there should be certain limited fair use exceptions in trademark cases).

In trademark cases, judges are primarily concerned with whether an entity’s use of another company’s trademark could confuse consumers. In the Starbucks case, “Dumb Starbucks” could argue that there’s no way consumers could possibly confuse it with the real Starbucks because the word “dumb” is everywhere. Starbucks, however, could counter that “Dumb Starbucks” was diluting its trademark’s uniqueness under a doctrine known as trademark dilution.

If Starbucks were to take this case to court, McKenna suspects it would win its case, though it wouldn’t be a slam dunk.

“My suspicion is that it’s so much of the [Starbucks] trademarks,” he said, “that a court would have a hard time of avoiding the instinct of saying, ‘You’re taking too much.”

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