Dumb Starbucks and the Limits of Parody

Forbes reports:

A store opened in the Los Angeles neighborhood of Los Feliz this weekend calling itself “Starbucks ,” only with the word “dumb” in front of the name. “Dumb Starbucks” had a Dumb Starbucks logo, a Dumb Starbucks menu, even Dumb Starbucks cups (in Dumb Grande, Dumb Venti and Dumb Tall).
. . .

As the FAQ reads: “Although we are a fully functioning coffee shop, for legal reasons Dumb Starbusks needs to be categorize [sic] 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 has a Twitter account, where it shared a picture of its menu:

Enjoy our full menu of coffees and cold drinks pic.twitter.com/wPacrEEH9k
— Dumb Starbucks (@dumbstarbucks) February 8, 2014

Nobody seems to know where Dumb Starbucks came from, or whether it will last.

While Dumb Starbucks claims that can use Starbucks's logo and name because Dumb Starbucks is a parody, I think that they will have a difficult time arguing this in court. In Campbell v. Acuff-Rose Music, Inc., the Supreme Court held that a work of parody may be protected from lawsuits because it can be a "fair use" of the copyrighted work. The Court pointed out that it is dangerous for fair use evaluations to rely on judges' ability to determine when a parody is in good or bad taste, limiting the "threshold question" of whether a parody work is protected by fair use to "whether a parodic character may reasonably be perceived." But the Court added a footnote immediately afterwards noting:

The only further judgment, indeed, that a court may pass on a work goes to an assessment of whether the parodic element is slight or great, and the copying small or extensive in relation to the parodic element, for a work with slight parodic element and extensive copying will be more likely to merely “supersede the objects” of the original.

All that Dumb Starbucks seems to be doing is putting the word "dumb" in front of Starbucks's name and menu items. Beyond "Dumb," there seems to be no departure from Starbucks's original name, menu items, and logo. There is no other indication that Dumb Starbucks is criticizing Starbucks or its products.

While the Court in Campbell held that the parody song was protected fair use, the Court made sure to point out that "[t]his is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free." Here, Dumb Starbucks seems to be attempting to do just that.

And given Starbucks's litigious nature, I doubt that Dumb Starbucks will be around for very long.

UPDATE

Some further research indicates that the legal analysis here might be a bit more complicated, since Campbell was a copyright case, and Starbucks seems to be threatening trademark action against Dumb Starbucks. I am not an expert in intellectual property law, and I am certainly less of an expert when it comes to trademark. The central question in trademark cases is whether consumers will likely be confused that the infringing use of a trademark is being endorsed by or is associated with the trademark holder. That being said, it seems that Dumb Starbucks will still have a difficult time arguing trademark claims, since it is difficult to see how Dumb Starbucks's use of Starbucks's trademarks describes Dumb Starbucks's own products or how the use of the trademarks is part of an overall critique of Starbucks. And Dumb Starbucks's pervasive use of Starbucks's various trademarks will make it difficult for Dumb Starbucks to show that they are using only as much of Starbucks's trademarks as is reasonably necessary to identify Starbucks as the target of the parody.