Patterico's Pontifications

2/10/2014

“Dumb” Starbucks Opens, Soon to Close, in Los Feliz

Filed under: General — Patterico @ 7:54 am

Rainn Wilson put up these pictures on Instagram of a new business calling itself “Dumb Starbucks.”

Screen Shot 2014-02-10 at 7.47.30 AM

The store uses the Starbucks logo and other intellectual property belonging to Starbucks, but — here’s the clever part!!!! — puts the word “dumb” in front of it!

According to a Frequently Asked Questions document posted at their location, they seem to think they can do this because of parody law:

Screen Shot 2014-02-10 at 7.48.27 AM

Despite admitting that it’s not actually a parody, but a cheap dodge:

Screen Shot 2014-02-10 at 7.49.12 AM

Yeah, good luck with that. Nothing like providing a big corporation a giant EXHIBIT A in their lawsuit against you.

So long, “Dumb Starbucks”! We hardly knew ye.

Thanks to Dana and Popehat on Twitter.

P.S. My first reaction to this was that it was some kind of hoax or weird advertising ploy. I’m still not sure it isn’t.

74 Responses to ““Dumb” Starbucks Opens, Soon to Close, in Los Feliz”

  1. starbucks’ self-important douche ceo is resigning from the day to day stuff so it’s likely though not certain that starbucks might could get less butt-stupid and focus more on making and selling the coffee and spend less time focusing on the petty nuances of American governance

    happyfeet (8ce051)

  2. I expect that they plan to change to some independent shop shortly, after having made a splash in the neighborhood.

    As publicity stunts go, this is pretty effective and I really don’t see, beyond making them stop using their name and logo, what Starbucks can really do. Can’t sue for damages for a parody or for being called “dumb” (and win).

    Kevin M (dbcba4)

  3. Heh! You guys might also like this. http://www.grubstreet.com/2013/12/exit-6-missouri-starbucks.html

    P.S. I’ve done a bit of trademark infringement defense. The thing is, it’s important to attempt to protect your trademark, and to look like you’ve done it. Even from something silly. Even if, to a reasonable person, your cease and desist demand is silly. It’s a requirement of trademark preservation under the law. Even if it is Mickey Mouse.

    nk (dbc370)

  4. Kevin, it’s pretty clearly trademark infringement. Not dilution, not parody, just straight out infringement. The “dumb” does not save it. And there are severe penalties associated with it. One some of you would approve of — loser pays attorneys’ fees.

    nk (dbc370)

  5. Since they are giving away the coffee and such, there are no profits to disgorge, and after they change their name they will have a fine business if their coffee is any good.

    And they will be locally known, forever, as “Dumb Starbucks” and not a damn thing Starbucks can do about it.

    Kevin M (dbcba4)

  6. nk,

    So they get a cease & desist letter and they cease and desist. Pretty sure they plan to do just that. They are NOT using the name to make money — the coffee is being given away.

    Kevin M (dbcba4)

  7. Kevin M., if they later turn out to be using this for publicity for a later, differently named, coffee shop, then they will have revenue and can be sued for damages.

    Its a pretty stupid stunt unless one has deep pockets to fund it.

    SPQR (768505)

  8. What damages? How has Starbucks been damaged by this? Their income will be unchanged and their IP is intact. They can and will insist that these folks pull down their signage and refrain from ever again using the word Starbucks in their business.

    You may be correct that they could get some damage award from the current use of the logo, even though there is no income, but I doubt an LA jury would agree.

    Pretty sure that several lawyers looked at this before they started and signed off on it. Besides, whatever corporation is behind this is likely immune to any significant damages. If Starbucks waits a year until their is a going business and then sues, it’s even less likely a jury would go along since there is at least an arguable case for parody.

    Kevin M (dbcba4)

  9. *there

    Kevin M (dbcba4)

  10. Its a pretty stupid stunt if one has deep pockets to fund it.

    FIFY.

    Kevin M (dbcba4)

  11. I don’t really get this stunt. If I want Starbucks I can easily find one, so why go to generic Starbucks? I like other coffee places, but this one is just a ripoff of Starbucks, so really, what’s the point?

    I guess it’s a clever publicity stunt, but at the low margins independent coffee shops run, this kind of legal problem is not worth the attention.

    Dustin (303dca)

  12. Hmm? I think the “damages” can be “All Triple your profits they belong to us. And our lawyers will also be sending their invoice.”

    nk (dbc370)

  13. Its a pretty stupid stunt if one has deep pockets to fund it. ever aspired to have deep pockets.

    FIFY.

    Comment by Kevin M (dbcba4) — 2/10/2014 @ 9:13 am

    FTFYT

    I mean, a judgment can be renewed with another judgment if it’s unpaid, ad infinitum, so what business owner would use ‘judgment proof, lol’ as a marketing strategy?

    Dustin (303dca)

  14. Corporation. If they’re adequately capitalized and follow the corporate formalities, individuals are insulated from liability. They just lose their investment. I don’t think the Lanham Act is an exception to that. Maybe in a counterfeiting case, where there is also individual criminal liability?

    nk (dbc370)

  15. If it has lawyers, Dumb Starbucks’ law firm should be called “Dumb Lawyers.”

    Beldar (8ff56a)

  16. It’s not the case, by the way, that a tradename infringement has to be hugely commercially successful before it becomes a violation of the law. Ineffective idiots can also violate the law, and the fact that they only made a little bit of money doesn’t immunize them from liability (although it may obviously affect the size of the damages award against them).

    Also, when corporations are held in contempt of court — as can happen when, for instance, their managers flout and ignore court injunctions — it’s not the certificate of incorporation that gets locked up in jail. Whether by default or after a fight, Real Starbucks™ is going to get an injunction shutting Dumb Starbucks down, and if managers/owners cause or assist Dumb Starbucks’ corporate entity to violate that injunction, it will be the managers/owners who are fined and/or jailed for contempt.

    Beldar (8ff56a)

  17. The reason that any “parody” argument will be — ahem — promptly laughed out of court is Dumb Starbucks’ admission that their goal is not making a statement about Real Starbucks™ as part of art or public debate, but rather making money for Dumb Starbucks by “us[ing] their [Real Starbucks™'] intellectual property.”

    As our host points out, Dumb Starbucks didn’t just make a poor case in their materials that their real intent is genuine parody. Dumb Starbucks bragged that their parody defense was insincere — a lie told for the express purpose of commercially exploiting Real Starbucks™’ tradename, trade dress, advertising & marketing, reputation, etc.

    Even the makers of the porno movies (e.g., This Ain’t Ghostbusters XXX) that surf the very edge of commercial “fair use” aren’t as stupid as Dumb Starbucks: Their parodies always involve at least some arguable element of wit and thoughtful mockery that the parodists have added, and which they can argue with a semi-straight face might provoke public discussion or insight. The only thing Dumb Starbucks is adding to, or changing from, Real Starbucks™’ tradename, trade dress, etc., is the word “dumb,” and they brag that that even change is made solely to avoid the law and infringe on Real Starbucks™’ intellectual property.

    I suppose on a very meta basis, they might argue that this is such a poor attempt to perform an arguably legal parody that it’s a parody of parodies. But that’s too meta for most judges to follow.

    Beldar (8ff56a)

  18. Maybe the proprietors of Dumb SB can use this thread as evidence for a claim of incompetent counsel as a personal defense.

    Yes, that was tongue in cheek.

    MD in Philly (f9371b)

  19. http://www.aei-ideas.org/2014/02/iranian-warships-off-americas-shore/

    I wonder what the range on their missiles are. Maybe we should move further inland.

    MD in Philly (f9371b)

  20. Dumb idea.

    What’s the parody again? “They’re dumb! BWAHAHAHA! No, not really, we love them!”

    CrustyB (5a646c)

  21. nk (#3 — 2/10/2014 @ 8:17 am): Thanks for sharing that link. I, for one, would totally have liked to have tried that trademark infringer’s Starbuck-McDonalds-Coca Cola-Marlboro Honey Lager beer!

    Beldar (8ff56a)

  22. “If it has lawyers, Dumb Starbucks’ law firm should be called “Dumb Lawyers.”

    Beldar for the win.

    SPQR (1c89a2)

  23. You’re welcome, Beldar.

    In this case, I refuse to believe that anybody would be so dumb or would have such dumb lawyers. This looks like a substantial investment, too, for a prank. Like our host, I suspect a publicity stunt like this one http://www.ihatesarahmarshall.com/, which included roadside billboards saying “I am so over you Sarah Marshall” and turned out to be advertising for a movie “Forgetting Sarah Marshall” http://youtube.com/watch?v=D9podUETps8. (A forgettable movie.) And I don’t necessarily believe that Starbucks has no hand in it, notwithstanding the Q&A.

    nk (dbc370)

  24. I don’t think its very likely that Starbucks isn’t in on the stunt. If they aren’t, they can always say so.

    SarahW (267b14)

  25. I started a parody paper called “The Dumb LA Times”, but I lost in court because they said my parody paper and the LA Times were indistinguishable.

    DejectedHead (a094a6)

  26. Is it really any dumber than Real Starbucks?

    The inquisitive Dana (3e4784)

  27. I have not worked as an investigator in 34 years. If any of you guys want to play detective, here’s the beginning of the string. http://www.loopnet.com/Listing/18354602/1802-Hillhurst-Avenue-Los-Angeles-CA/ The lease listing for the place. It shows still “active”, updated 26 days ago. If you want to call the listing agent, his info is there. I won’t.

    nk (dbc370)

  28. “In this case, I refuse to believe that anybody would be so dumb or would have such dumb lawyers.”

    nk – I have never heard of a shortage of dumb lawyers in this country.

    daleyrocks (bf33e9)

  29. It’s not on LA County’s online fictitious name search, but there’s a 40-day grace period and/or the data might not yet be entered. There are nine geniuses, some purporting to be reporters, I found online who got into the place and took pictures of everything except the business license which should be displayed.

    I’m betting this is a movie set, BTW.

    nk (dbc370)

  30. Exhibit Z to the case of “Idiocracy” not being a dark comedy from the mid-00′s, but instead being a documentary sent back from our future.

    Lawrence Westlake (4fc30a)

  31. I agree #31, we’re in the beginning of the Idiocracy. It’s the defining story of the 21st Century so far.

    DejectedHead (a094a6)

  32. The real joke in all of this is that a coffee costs $5 at the real Starbucks.

    dfbaskwill (c021f2)

  33. I just remember who Rainn Wilson is (an actor). Yeah, NK’s right. This is a set for a show or a movie. The dumb parody schtick is part of a dumb businessman plot (which is a plot concept Rainn Wilson has acted in many times).

    Dustin (303dca)

  34. You lawyers are analyzing this as lawyers. Starbucks won’t sue anybody for making fun of them, or even for seeming to make fun of them. Only if these folks attempt to actually use their name and logo in business, and fail to fold after a cease&desist, will they consider a suit.

    Starbucks is in the “cool” business. Drinking $4 coffee at Starbucks is cool (Peet’s is cooler still). Being thin-skinned is not cool. Being seen as unable to take a joke will cost them business, and that’s their bottom line.

    You guys may not see this as a parody, but the public does. Who needs bad press?

    Kevin M (dbcba4)

  35. Hail lee marvin,, full of socks…

    pdbuttons (f79f91)

  36. our padre..denehey hee hee brian..full of towels

    pdbuttons (f79f91)

  37. Dumb Barack Obama.

    Elephant Stone (9d30f3)

  38. P.S. My first reaction to this was that it was some kind of hoax or weird advertising ploy. I’m still not sure it isn’t.

    Gosh, whatever would make you think that?

    Giant corporation sues little guy in court, news media (and little guy) exclaim, “David!! And Goliath!!” and there is much nattering and gromishing regards the situation… and eventually, David yields, changes the name, and more media natterings and David gromishings occur…

    “Would you like to Grande that for another fitty cents?”

    Smock Puppet, Gadfly, Racist-Sexist Thug, and Bon Vivant All In One Package (225d0d)

  39. Starbucks should be named Starburnt for how they third degree burn a coffee bean.

    mg (31009b)

  40. If this weren’t so obviously a stunt, then among other considerations, is fair use even a concept in trademark law, as opposed to copyright law? The purpose of copyright law is to provide producers with an incentive; i.e. it exists to protect the producer’s income at the consumer’s expense. The purpose of trademark law is the exact opposite: it exists to protect the consumer from confusion. Therefore it’s a defense that there’s no likelihood of confusion. But is fair use a defense at all?

    Speaking of which, I don’t see how that beer infringed. As the Exit 6 letter said, no consumer was going to think that the beer he ordered was actually Starbucks™’s coffee-based confection, or even that it contained that as an ingredient. Beer and sugar-with-some-coffee-added are sharply distinct products. So where’s the issue? Though I suppose it’s cheaper to just send a C&D letter and see what happens than to spend billable time considering whether this is an infringement that can’t be ignored without losing ones rights.

    Milhouse (b95258)

  41. If it’s all a fake — part of a movie promotion, for example — and if the fakers have been even moderately well advised by their legal counsel, then they’ve quietly gotten permission (likely in the form of a limited-purpose limited-duration licensing agreement) from Real Starbucks™.

    But absent that permission, I think it’s extremely likely that Real Starbucks™ can and will indeed react. As nk points out — and, respectfully Kevin M, notwithstanding your otherwise quite astute and persuasive point regarding Real Starbucks™’ “coolness” and desire not to seem thin-skinned — a knowing failure to enforce one’s tradename/trademark rights is a sure way to lose them. Intellectual property law insists that they be ever-vigilant, in other words, at the very real risk of losing their right to ever complain — which is indeed exactly why Starbucks paid lawyers to write a C&D letter to Exit 6, for example, and would indeed have proceeded with litigation had not Exit 6 backed down, stylishly or not.

    Beldar (8ff56a)

  42. Here’s a pretty good list of companies who learned the hard way that when it comes to protecting your tradename, if you snooze, you lose. Starbucks, to put it bluntly, doesn’t want to become the next Linoleum, Yo-Yo, or Zipper.

    Beldar (8ff56a)

  43. New developments:

    The Los Angeles County Health Department shut down the Dumb Starbucks on Monday just as the man behind the faux coffee shop in Los Feliz revealed he was the host of a Comedy Central TV show.

    The shop was closed for operating without a health permit, the department told The Times. A sign was posted on the front window of the store on Hillhurst Avenue on Monday evening, saying it was closed for violations.

    Comedian Nathan Fielder held a tongue-in-cheek news conference outside the storefront in a strip mall, wearing a green apron adorned with the mock logo.

    It’s not clear whether Comedy Central knew about this. Nathan said “They do now” and I’m sure its attorneys are looking into it.

    DRJ (a83b8b)

  44. Hmm, the plot thickens, DRJ.

    nk (dbc370)

  45. Milhouse, Starbuck’s itself relies on fair use of a sort. It took the name of the first mate of the Pequod from Moby Dick. If my Starbuck’s Fish and Bait Shop preexisted Starbuck’s Coffee’s registration of its mark, and even though I had never registered mine, I could still keep my business name. But if I were to adopt the name now, after it’s registered its mark, I would be in trouble. Check out that link in my comment 3. It’s complicated. The Lanham Act is a messy statute and has produced messy and conflicting precedents. Most people don’t want to spend the money to educate a judge who is likely as confused about the law as they are.

    nk (dbc370)

  46. http://en.wikipedia.org/wiki/Nathan_For_You

    “Nathan For You is an American docu-reality comedy television series starring Canadian comedian Nathan Fielder. The series was co-created by Fielder and premiered on February 28, 2013 on the American cable television network Comedy Central.[1] In the series, Fielder plays an off-kilter version of himself, who tries to use his business background (a commerce degree from the University of Victoria (UVIC) in 2005) and life experiences to help struggling companies and people, offering them strategies that no traditional business consultant would dare to attempt.”

    I think SBs is in on it, too.

    SarahW (267b14)

  47. Beldar–

    I agree they have to defend, but they have leeway in how they proceed. A C&D letter is a defense, and one that should work. A lawsuit would only be required if the proprietors were complete idiots.

    Obviously the trademark confusion (particularly the logo seen from a distance) means they cannot continue, even as a spoof. This is a funny-once kind of thing anyway.

    I would imagine that Starbucks is trying to see just how un-heavily they can come down on this, while putting a stop. My original point is that the DSB people have already got everything they want (press attention, local coverage) and they should move on to step two. As long as that has NOTHING to do with Starbucks IP, I’d think Starbucks will leave them alone.

    Kevin M (dbcba4)

  48. The shop was closed for operating without a health permit, the department told The Times

    Now, THAT will get you in trouble in LA, especially if you’re legally here.

    Kevin M (dbcba4)

  49. nk,

    No fair use required for Moby Dick.

    Kevin M (dbcba4)

  50. Yes, Kevin. A settlement agreement, in writing, that states the mark will not be used anymore is sufficient. I settled a case by agreeing to change the graphic and the font. We made it clear that we would defend the name to the death.

    nk (dbc370)

  51. nk, why would “Starbucks fish and bait shop” be a problem? Do they sell bait now at Starbucks? You probably couldn’t sell coffee or pastries, of use their font, but it’s not at all clear that there would be a confusion in commerce from using the name in an unrelated business.

    Kevin M (dbcba4)

  52. Of course, that confusion thing can be tricky. I remember the Lamps R Us (and also Bulbs R Us) case where Toys R Us won even though they did not and do not sell lamps.

    Kevin M (dbcba4)

  53. nk, #51, see my #2.

    Kevin M (dbcba4)

  54. Dilution, too. As Beldar pointed out, you want to keep your mark unique and distinctive to your business as much as possible. And what likely helped Toys R Us, in your example, is that the phrase itself was arbitrarily ungrammatical and unique to begin with and Johnny come latelies could reasonably be suspected of trying to piggyback Toy R Us’s goodwill.

    nk (dbc370)

  55. And you also do not want “_____ R Us” to fall into common use/become “grammatical”.

    nk (dbc370)

  56. I still don’t see what is funny here. It would have been better to go with: Starsucks.

    AZ Bob (533fbc)

  57. This is funny:

    “It was a pretty dumb idea to come out in the cold” and wait for nearly two hours to get a coffee, joked Anthony Solis, who lives in nearby Hollywood.

    The temperature in LA is in the low to mid 70s. Milquetoasts.

    nk (dbc370)

  58. It was a parody. The guy behind it happens to be known for pulling pranks.

    Steven (dce61a)

  59. A parody maybe of a trademark violation. Was there any actual coffee involved?

    Sammy Finkelman (d22d64)

  60. Comment by MD in Philly (f9371b) — 2/10/2014 @ 10:46 am

    I wonder what the range on their missiles are. Maybe we should move further inland.

    Depends where they fire it from.

    Iran is engaged in blustering: WATCH: Iran state TV airs simulated attack on Israel

    The documentary’s computerized simulation shows how the Iranians envision an attack on Tel Aviv, Haifa, and the USS Abraham Lincoln.

    Sammy Finkelman (d22d64)

  61. Arutz 7: Drones and missiles are shown bombing Haifa, Ben-Gurion Airport, and the Dimona nuclear reactor, and striking the American aircraft carrier USS Abraham Lincoln, American military targets in the Persian Gulf and downing US aircraft.

    They’ve got nothing on the ships heading toward the U.S. East coast, or are not saying.

    Sammy Finkelman (d22d64)

  62. There’s a website that was talkin smack about the Iranian fleet … only place I’ve read anything about the ship types.

    http://tinyurl.com/kccm6gk

    Bobby (2a5ea1)

  63. Thanks, Bobby. It looks like I probably have nothing to fear until they come up the Delaware Bay/River.

    MD in Philly (f9371b)

  64. Milhouse, Starbuck’s itself relies on fair use of a sort. It took the name of the first mate of the Pequod from Moby Dick.

    1. Moby Dick is not a business, and has no trademarks.
    2. It’s in the public domain, so there’s no copyright either.
    3. Even if it weren’t, names aren’t subject to copyright.
    4. If it were a business, and had registered its first mate’s name as a trade mark, the coffee shop would still not infringe, because there’d be no possibility of confusion. Maybe if they put a coffee stand on a commuter ferry they’d get in trouble.

    But if I were to adopt the name now, after it’s registered its mark, I would be in trouble.

    Why? Where’s the possibility of confusion? What is any consumer being protected from?

    Check out that link in my comment 3.

    I already commented on it. I don’t see how Exit 6 was infringing. What false conclusion could a customer of the beer place possibly reach?

    Milhouse (b95258)

  65. Stupid business advice is the presmise of the show.

    I think Starbucks agreed to it as free product placement, understanding that it would be a limited-time stunt that would generate buzz but be shut down almost at once.

    SarahW (267b14)

  66. Beldar:

    But absent that permission, I think it’s extremely likely that Real Starbucks™ can and will indeed react. [..] a knowing failure to enforce one’s tradename/trademark rights is a sure way to lose them.

    But if this place never sold any coffee, then where’s the infringement? Even if one of the people who accepted a free cup of coffee thought it was a real Starbucks™, how was she harmed?

    Intellectual property law insists that they be ever-vigilant, in other words, at the very real risk of losing their right to ever complain — which is indeed exactly why Starbucks paid lawyers to write a C&D letter to Exit 6, for example, and would indeed have proceeded with litigation had not Exit 6 backed down, stylishly or not.

    Again, on what grounds? How could anybody mistakenly buy the beer thinking it was liquid candy?

    Milhouse (b95258)

  67. Iran is engaged in blustering: WATCH: Iran state TV airs simulated attack on Israel

    The documentary’s computerized simulation shows how the Iranians envision an attack on Tel Aviv, Haifa, and the USS Abraham Lincoln.

    Some likely pix of the aftermath of Iran attacking Israel….

    Smock Puppet, Gadfly, Racist-Sexist Thug, and Bon Vivant All In One Package (225d0d)

  68. “I suppose on a very meta basis, they might argue that this is such a poor attempt to perform an arguably legal parody that it’s a parody of parodies. But that’s too meta for most judges to follow.”

    -Beldar

    What a great comment that is – seriously.

    Leviticus (474b53)

  69. I suppose on a very meta basis, they might argue that this is such a poor attempt to perform an arguably legal parody that it’s a parody of parodies. But that’s too meta for most judges to follow.

    Clearly this great nation needs more hipsters on the judicial benches.

    JVW (5a3544)

  70. What if they changed their name to “The Coffee Shop Previously Known As ‘Dumb Starbucks’”? Too wordy? Not to worry, they could find some Sanskrit-esque symbol and then they could effectively be known as “The Coffee Shop Previously Known As ‘Dumb Starbucks’”

    Ratbeach (477e41)

  71. The Symbol Which Is Not Starbuck’s But Over-priced Swill Still?

    nk (dbc370)

  72. Running through the issues: there is a more limited “parody” defence to infringement in trademark law than in copyright law. If you do parody a trademark, one of the biggest requirements is that you use as little of the protected trademark as possible. Given that “Dumb Starbucks” went out of its way to use as much of the trademark (and trade dress) as possible. Whoops.

    While “the nature of the goods being sold” is but one of the Polaroid factors for trademark infringement, it tends to be a big one. “Barbie Girl” was about selling music. “Coca Cola” riffs sell T-shirts. As much as “Dumb Starbucks” claims to be selling art, it is selling coffee. Whoops.

    Under the 2006 trademark anti-dilution act, Starbucks doesn’t need to prove actual economic losses, only that they are likely. Whoops.

    bridget (37b281)


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