When Does “Performance Art” Become Trademark Infringement?
Recently, a pop-up shop called Dumb Starbucks appeared in Los Angeles, CA, east of the Hollywood Hills. This snappy faux Starbucks sold newly branded versions of Starbucks items, including Dumb Blonde Roast Coffee, and Dumb Lattes. And the mimicry of the Starbucks sales model and shop experience didn’t end there—the shop also displayed such classic CDs as “Dumb Jazz Standards” and “Dumb Nora Jones” in display cases by the cash registers.
While fascinated locals waited in line for hours for their dumb coffee, Starbucks scratched its head and grew increasingly agitated at the use of its trademarks, including variations of its famous logo, in the LA store and across social media. News of the stunt went viral, and in a matter of days, the @DumbStarbucks twitter handle picked up over 15,000 followers. While the store was quickly shut down for operating without a valid public health permit, the legend lives on, and it’s sparked an interesting debate about performance art and permissible parody use of famous trademarks.
Who Is That Masked Dumb Starbucks Hero?
Comedian Nathan Fielder recently announced on the “Jimmy Kimmel Live” show that he is the owner of the LA shop. He says his shop is legal because he is operating under parody laws, and the shop is an art gallery, not a coffee shop. And the coffee they’re selling is art too. Starbucks, as you might imagine, has a different view regarding Fielder’s use of dumb versions of its protected trademarks.
The shop has been so popular that other media hounds attempted to claim credit for the hoax. One hoaxster professor, after Fielder claimed credit, contended that the art actually began when he personally took credit for Dumb Starbucks and called the idea his own during his lecture at the University of Southern California on art appropriation and hijacking on social media. When asked to explain this art theory, he claimed that his own authorship claim blurred the authorship lines and caused confusion around the discussion of Dumb Starbucks. Seriously. That kind of art is too deep for me to comprehend.
Is Dumb Starbucks Parody or Trademark Infringement?
Dumb Starbucks is still selling shirts and hoodies carrying the modified Starbucks logo on its Facebook page, and is looking to open a second location in Brooklyn once they work out the health department issues relating to the dumb coffee art. Surely if this continues, Starbucks is going to go with a more formal (read legal) response to Fielder’s stunt. But who’s in the right: is Dumb Starbucks a permissible art form and parody of a strong brand?
Parody and satire are forms of free speech, protected by the U.S. Constitution. There are many recent examples of attempted parody uses of trademarks, such as North Face and South Butt or Louis Vuitton Handbags and Chewy Vuiton pet toys. But the line between permissible parody uses of trademarks that are considered fair uses of marks versus infringement can be hard to draw. Basically the issue boils down to the question of whether there’s use of a famous trademark where just enough of the original mark is used to allow consumers to appreciate the point of the parody, but the use stops short of appropriating the entire mark. That is, if it looks too much like the famous mark and there’s little distinction, then consumers are likely to be confused and the attempted-parody use turns into good-old-fashioned trademark infringement.
So what do you think? Should the Dumb Starbucks store and its use of the famous Starbucks marks be considered a parody and allowed to continue? Do you think the average consumer would get the joke?