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Dumb Starbucks and Fair Use

By Jonathan MacKenzie @JMacKenzieLaw |

The cat is out of the bag on the surreal episode that was 'Dumb Starbucks.' The carbon copy of the popular Seattle chain was shut down for not having a health permit, just after its mastermind was revealed to be television comedian Nathan Fielder. So despite the protests from its owner that another location is planned, it seems safe to conclude at this point that the entire event was more 'parody' than cunning business plan.

Most people suspected this was the case from the beginning. The gag was just too perfect, all the way down to 'Dumb Nora Jones Duets' displayed beside the cash register; but many held out hope. As a lawyer who often works with small and medium businesses in issues around trademarks, I'm still getting asked, if the owner gets his health permit sorted out, could the parody coffee shop remain in business?

The practical answer is, of course, no. Starbucks is large enough, and this case cuts close enough to their brand identity that it is likely they would bury any small business owner in costly litigation. But, even if a business owner had the finances and the time to fight in court, it's still unlikely he would win.

The defence offered up by Fielder is that Dumb Starbucks is parody, and is thus 'fair use' of Starbucks’ copyright and trademark. On the surface, this seems like a reasonable assertion, Parody, after all, has been a bulwark of resistance to the growing power of copyright law. However, in order to assert a ‘fair use’ defence, Fielder would have to prove that what he is doing is a true “parody” and not merely a commercial replacement for Starbucks.

While there is still a 'fair use' exemption for criticism and parody in the case of trademarks, it is restricted in cases where the use might confuse the market. If Dumb Starbucks sold hamburgers, their parody defense would be stronger. As it stands, the similarity in the trademark and design of the business, as well as the fact that the two businesses are direct competitors, makes it less likely that a 'fair use' defence would be successful.

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