OpinionStarbucks This article is more than 9 years oldDumb Starbucks was the perfect crime, but Starbucks was smart to play dumb
This article is more than 9 years oldLisa BorodkinDumb Starbucks was a Catch-22 for trademark lawyers, and a benchmark for modern humor
Everyone liked the Dumb Starbucks Coffee that opened in my neighborhood last weekend. Hipsters arrived in droves to take selfies in front of the Dumb Starbucks logo. Tourists traveled from the West Side of Los Angeles to take pictures in front of the hipsters. Social media liked talking about how dumb those first two groups of people were. Shove it to the man, said the Yelpers. We love the real Starbucks, but yeah, stick it to the man! My contribution to this “happening”, as a Los Feliz local and former Starbucks lawyer, was to persuade the Dumb Starbucks patrons to wrap the line over the sidewalk instead of through the parking lot.
All the better to see, up close, a ticking time bomb of our very public times. Because everyone also liked talking about how the Starbucks lawyers were going to blow Dumb Starbucks to Kingdom Come. There was, in this local stunt turned national sensation, a universal awareness that the prank was doomed somehow, that someone was going to get in trouble – and just not the end users for a change.
From an intellectual property law perspective, though, Dumb Starbucks was an impossibly well-planned parody – a spree of trademark infringement, tarnish and dilution that began on a Friday night, after the federal courts were closed. That gave the jokesters, whomever they were, an entire weekend to get the social media influencers on their side by giving away free coffee and being really friendly. Instagram, Twitter and the blogs speculated into the week about who was behind Dumb Starbucks, and a mob prepared for the shaming of whatever boneheaded, humorless legal move might threaten this genius institution, however temporary.
But Starbucks is well-versed in this sort of thing. I know, because I was a part of a big Starbucks fail before this social media era of ours. As a first-year law firm associate in 1997, I worked for Starbucks on a cease-and-desist notice claiming the exclusive rights to the phrase “Christmas Blend” for the purposes of selling coffee. It turned out that some monks in Seattle had also been using the name “Christmas Blend”. The monks got mad! And when monks get mad, they go to the press. Shove it to the man, said the monks. We monks serve God and truth. The story was picked up by hundreds of wire services, CBS Morning News and National Public Radio.
Nowadays, intellectual property lawyers are well trained in the dangers of the Streisand Effect - hiding when the internet is seeking - and corporations have a recent history of just letting go. Go too far beyond the words “cease” or “desist”, and you’re going viral; play along, and you’ll probably be fine in a couple days’ time. The 2006 Mike Judge film “Idiocracy” portrays a dystopian future where Starbucks serves adult experiences, not coffee. It was an instant cult favorite, but Starbucks has never complained. And so the company issued a statement this week admitting that the pop-up establishment in Los Feliz “obviously” wasn’t a Starbucks. Since we all agreed that nobody thought Dumb Starbucks was a real Starbucks, the latest would-be trademark infringement case was over before it began.
Even if some smart lawyer wanted to claim a technical violation for trademark dilution, that person would have a hard time getting around the obvious parody. Because when trademark parodies are successful, it’s because they’re obvious. Case in point: Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, in which Louis Vuitton sued a dog toy company for making ersatz “Chewy Vuitton” purse-shaped dog toys with “CV” logos on them. The case was so bad, Louis Vuitton was reduced to arguing that the toys tarnished the value of the “LV” mark because they presented a choking hazard for certain dogs. (Spoiler alert: It wasn’t the dogs that choked.)
Internet lawyers will keep arguing about Dumb Starbucks – It’s fair use! But this isn’t copyright, is it? It’s a publicity stunt! It’s a sham to make news laws for corporate America! – but viral parody is pretty well protected by parody law. And that presents a problem for corporate trademark owners, who technically have to take steps to protect their identities or risk losing their trademarks altogether.
Just as I was starting to feel sorry for the poor Starbucks team, the comedian Nathan Fielder mercifully claimed credit for the trademark hijacking and graciously allowed the Los Angeles County Board of Health to shut down Dumb Starbucks for operating without a license.
Only when that big reveal finally arrived on Monday afternoon did the true genius of the performance become clear.
The premise of Fielder’s Comedy Central show, “Nathan for You”, is that he gives terrible advice to small businesses. Whether the legal analysis in the Dumb Starbucks “FAQ” was correct or false became irrelevant. If the advice was correct (that fair use protected the “store” as a parody), then Fielder could operate as “Dumb Starbucks” without infringing on intellectual property. If the analysis was wrong, well, that’s just more of his terrible advice. Either way, Dumb Starbucks had to be fair use legally, because Fielder was making fun of Starbucks, which has a smart intellectual property protection team. “We’re an art gallery, and the coffee we’re selling is considered the art, and art galleries don’t need health permits,” he told Jimmy Kimmel on Tuesday night.”
The comedian had checkmated the man.
Alas, the much anticipated lawyer-squashing never came. Instead, Starbucks said that, yes, it appreciated the humor, but Dumb Starbucks “cannot use our name”. Of course, it would have been one of the greatest trolls in history had Starbucks actually taken the bait and filed some legal action against this comedian. But nobody seemed all that concerned for very long anyway. “My wife and I drove by it,” said one LA city councilman, “then went to a real Starbucks and got our chai lattes.”
Well played, Dumb Starbucks. And well played playing dumb, Starbucks.
(Disclaimer: The author is a shareholder of four shares of Starbucks Corporation stock [SBUX] and a gold level Starbucks cardholder.)
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