Not Just Another “Dumb Starbucks”: Faux Coffee Front Stirs a Latte Laughs
Nearly every strip mall hosts a Starbucks. But there’s only one strip mall that hosts an entitled “Dumb Starbucks.” Last Friday, in the Los Feliz neighborhood of Los Angeles, “Dumb Starbucks Coffee” opened its doors. Within the past three days, social media has been buzzing with news and comments on the parody.
The store is in no way affiliated with Starbucks Corporation, but the pop-up shop does make use of their logo, store décor, menu items, and general theme. At first glance, this looks like a passing off on the Seattle corporation’s brand, but a flyer of Frequently Asked Questions will inform you that this is all a parody. By putting “dumb” in front of Starbucks and every one of their menu items, (e.g., “Dumb Mocha Frappuccino;” “Dumb Caramel Macchiato”), the pop-up shop is making fun of their corporate inspiration, and not passing off on the brand’s goodwill.
Technically, the pop-up store is not really a coffee shop, but a gallery, and the art is its coffee. Such an anti-establishment stunt seems typical of the Los Feliz-Silverlake neighborhood, which is sometimes described as the hipster capital of the world.
Considering all the hoopla about “Dumb Starbucks,” I went to check it out for myself. Upon arriving on an early Sunday afternoon, I saw a line of people wrapping around the corner. Before following the crowd, I snuck into the store to scope out the premises. If there weren’t “dumb” in front of absolutely everything – including “dumb” tall, grande, and venti cup sizes – I would think it was actually a Starbucks. The creators of the pop-up shop nailed every detail.
Most interestingly, despite a display of priced menu items, nothing was actually for sale. All the food and beverages were free (and reportedly from Von’s). The liberal gifting of coffee and pastries might also have justified an extraordinarily long line. Despite the generous handouts, I never heard any comments on the quality of the coffee.
There are questions more burning than how the coffee tastes, however. First, who is behind this “dumb” lampooning of the corporate coffee giant? Second, what does Starbucks think, and what are they going to do about it? Unfortunately, the identity of the creator is unknown at this time. So far, Starbucks’ comments on the matter have been limited. Yet, one representative told The Hollywood Reporter, “We’re aware and this isn’t a Starbucks location and we’re looking into it.
As far as Starbucks’ future action, my guess is that they slap a complaint on “Dumb Starbucks” for trademark infringement and trademark dilution, among other things. It is clear that the pop-up has anticipated this potential threat, and has thus shielded itself with a parody defense. To prevail on a Lanham Act trademark claim [15 U.S.C.A. § 1114(1)], a plaintiff must prove: (1) that it has a protectable ownership interest in the mark; and (2) that the defendant’s use of the mark is likely to cause consumer confusion. The success of an infringement claim will hinge on the second element of any likelihood of confusion consumers will have between the senior mark holder, Starbucks Corporation, and the newcomer “Dumb Starbucks.”
Trademark Infringement and Consumer’s Likelihood of Confusion
According to American Law Reports, the courts have held that parodies or takeoffs of trademarks for restaurants constituted trademark infringement. Such was the fate in McDonalds Corp v. McBagel’s Inc., 649 F. Supp 1268 (SDNY 1986), where the plaintiff successfully enjoined the defendant-bagel shop from using the name “McBagel’s” or any other name using the formative “Mc” in combination with a generic food item.
In another similar action, the court in Wendy’s Intern., Inc., v. Big Bite, Inc. 576 Supp. 816 (S.D. Ohio 1983), enjoined the defendant-fast food company from airing a television commercial that parodied the advertising campaign of Wendy’s by using a cute, pigtailed little girl who resembled the plaintiff’s service mark “Little Wendy.”
On the other hand, courts have also held that, under certain circumstances, parodies of the trademarks of restaurants did not constitute trademark infringement. Most relevant to the case at hand is the precedent of WHS Entertainment Ventures v. United Paperworkers Intern. Union, 997 F. Supp. 946 (M.D. Tenn. 1998). There, representatives of a labor union distributed flyers to patrons at a saloon that listed violations found by a health inspector and included a parody of the saloon’s trademarked logo. The court dismissed causes of action by the plaintiff-saloon for trademark infringement and dilution, holding that the parody of the trademark had not been used in commerce, and there was no likelihood that the parody would be confused with the saloon’s actual logo.
Returning to the issues facing “Dumb Starbucks”, the shop has been smart not to actually sell anything. This action bolsters their claim that “Dumb Starbucks” is an art gallery making social commentary, rather than a coffee shop passing off on the corporate giant’s brand. Once the pop-up shop actually sells a “Dumb Mocha Frappuccino,” however, they will have used Starbucks’ mark in commerce, thus opening themselves up to suit.
If a trademark infringement suit moves forward, the court will also consider the likelihood of confusion for patrons of “Dumb Starbucks”. Considering that the shop opened in Los Angeles, the factors used for analysis will most likely be the Ninth Circuit Sleekcraft factors. There are eight considerations that are afforded weight to either party and are then balanced to determine the likelihood of confusion. The factors include:
(1) The strength of the senior mark; (2) the similarity of the marks; (3) the marketing channels used; (4) the proximity of the goods; (5) defendant’s intent in selecting its mark; (6) evidence of actual confusion; (7) the likelihood of expansion of the product lines; and (8) the type of goods and the degree of care likely to be exercised by the purchaser.
To apply these factors in order, Starbucks is super famous and thus all of their marks are afforded ample strength. Second, the marks are nearly identical – “Dumb Starbucks” has taken precautions to make almost an exact replica of a typical Starbucks store, logos, menus, and word marks included. Third, there is not enough evidence to comment on the convergence of marketing channels used, since thus far, the notoriety of “Dumb Starbucks” has come from word of mouth and social media. Fourth, the proximity of goods is very close – again, “Dumb Starbucks” offers nearly the same beverage and food products as the predecessor. Fifth, “Dumb Starbucks” is intentionally using Starbucks logos and brand for their own marketing purposes. Sixth, there is no evidence of actual confusion – and there is likely to be very little. Seventh, there is no likely expansion of “Dumb Starbucks” product line beyond coffee and treats.
The eighth factor is the most interesting. The type of goods that Starbucks and “Dumb Starbucks” sell are overpriced, usually burnt, but always appealing coffee and coffee-flavored beverages. The average price of a coffee drink is a few bucks – not enough of a cost to elicit extreme consumer deliberation and caution. However, coffee imbibers tend to be very particular about their beverage: hot, steamed, extra shot, decaf, whip, no whip, two pumps sugar-free vanilla, etc. Such picky tendencies evidence discerning consumers who would likely notice even the subtle disparities between a real Starbucks and the “art gallery” version. However, you can’t put it past the typical American to walk into “Dumb Starbucks” while playing on their smart phone, order their complicated drink, pay for it, pick it up, walk out of the store, and not even know the difference.
It is also important to note that there is such a concept in trademark law as “initial interest confusion.” This is based upon confusion that creates initial interest, even though no actual sale is finally completed as a result of the confusion. This concept applies to the scenario where a loyal Starbucks patron unknowingly stumbles into “Dumb Starbucks,” anticipating the real thing, and then later figures out they are not in their preferred franchise. Though the customer subsequently realizes the difference before any sale is consummated, the confusing similarity of appearance has attracted the consumer and induced them into considering purchasing the product. It’s somewhat of a bait-and-switch scheme, and may trigger a finding of infringement.
Another potential claim that Starbucks could bring is under the Federal Trademark Dilution Act of 1995 [15 U.S.C.A. § 1125(c)]. The substantive provision of this statute protects famous marks against uses in commerce that cause dilution of the distinctive quality of the mark. To prevail on a federal dilution claim, however, a plaintiff is not required to prove likelihood of confusion.
Thus, Starbucks Corporation must show that “Dumb Starbucks” dilutes their brand by creating negative associations that tarnish their image. For example, Starbucks may complain that the pop-up shop pokes fun at the corporation for being an insensitive, money-hungry behemoth, with no concern for coffee purity. When in reality – or at least from Starbucks’ perspective – they attempt to source their coffee beans fairly, participate in give-back programs (e.g., Ethos bottled water), and provide enough java for the demands of America and the world.
This type of dilution claim has a higher potential for success for Starbucks Corporation, especially since they may forego the likelihood of confusion analysis. However, if the claim is brought, a court will still recognize that parody is a form of artistic expression, protected by the First Amendment. The pop-up coffee gallery intends to be, and currently operates as, a satirical imitation that aims to make Starbucks and corporate America seem ridiculous. As such, the court will balance the rights of Starbucks as a trademark owner against First Amendment concerns.
Since the “Dumb Starbucks” art gallery/coffee shop has only been open three days, and has yet to make any sales, it’s too soon to predict the outcome of a potential lawsuit Starbucks Corporation may bring. Either way, the defending coffee joint will have a death grip on their parody defense. It’s also highly unlikely that the pop-up shop will be open for very long, so if you want to see the “art gallery” for yourself, I suggest you check out “Dumb Starbucks” at the corner of Hillhurst and Melbourne in Los Feliz.