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The Magic Cafe Forum Index » » Not very magical, still... » » Is This Coffee Shop Infringing On Starbuck's Registered Trademark? (0 Likes) Printer Friendly Version

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General_Magician
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Here is an interesting article I found. A coffee shop calling itself "Dumb Starbucks" and serving free beverages to everybody claims it is not infringing on Starbuck's trademark and is protected under parody. I am interested in hearing from the lawyers on this one: http://finance.yahoo.com/news/starbucks-......725.html

Quote:
All weekend, a new coffee shop called "Dumb Starbucks" served free beverages to baffled Los Angeles customers.

The shop is identical to Starbucks in every way, except that the word "dumb" is prefixed to the title and menu items.

Now, Starbucks has an ominous warning for the new store.

"We appreciate the humor but they can't use our name," Starbucks spokesman Jim Olson told CNNMoney. "It's a protected trademark. It's our trademark."


Quote:
In an FAQ posted in the store, Dumb Starbucks claims that it can legally use the coffee giant's name and logo because it's protected under parody.

It's still unknown what Dumb Starbucks is, although some theories suggest it might be a marketing gimmick for Comedy Central.
"Never fear shadows. They simply mean there is a light shining somewhere nearby." -unknown

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LobowolfXXX
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Although parody is a legitimate defense to a trademark infringement claim, without looking for relevant case law, I don't think it's going to fly here (assuming his is an actual coffee shop that will be continuing business on an ongoing basis).
"Torture doesn't work" lol
Guess they forgot to tell Bill Buckley.

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General_Magician
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Quote:
On 2014-02-10 19:41, LobowolfXXX wrote:
Although parody is a legitimate defense to a trademark infringement claim, without looking for relevant case law, I don't think it's going to fly here (assuming his is an actual coffee shop that will be continuing business on an ongoing basis).


But this coffee shop is giving away the beverages for free, so it doesn't sound like a business to me. Wouldn't this fall under "fair use" and therefore could not be considereda trademark infringement given that no money is being made off the beverages?
"Never fear shadows. They simply mean there is a light shining somewhere nearby." -unknown

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Tom Jorgenson
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The soon-to-come Godzilla Foot will be crushing this flower very soon.

I'd erase most everything in the name and just go as Dumb S Coffee.
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General_Magician
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The soon-to-come Godzilla Foot will be crushing this flower very soon.


Something tells me you are right. I mean, the coffee shop might very well have a legitimate legal argument, but do they have the money that Starbucks has to spend on lawyers to defend themselves in court against Starbucks? Lawyers cost ALOT of money to defend what very well could be a legitimate legal argument and you could find yourself getting buried in legal bills that Starbucks can afford to pay, but you can't afford to pay, even though you have a legitimate legal argument. And the baracuda eats the fish!
"Never fear shadows. They simply mean there is a light shining somewhere nearby." -unknown

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balducci
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Seems like some conceptual artist is behind it ... which one(s) exactly, still not sure:

http://www.ctvnews.ca/business/dumb-star.......1679301

http://www.hollywoodreporter.com/news/la......g-679094
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Quote:
On 2014-02-10 19:44, General_Magician wrote:
Quote:
On 2014-02-10 19:41, LobowolfXXX wrote:
Although parody is a legitimate defense to a trademark infringement claim, without looking for relevant case law, I don't think it's going to fly here (assuming his is an actual coffee shop that will be continuing business on an ongoing basis).


But this coffee shop is giving away the beverages for free, so it doesn't sound like a business to me. Wouldn't this fall under "fair use" and therefore could not be considereda trademark infringement given that no money is being made off the beverages?


My response was based on the premise that this is actually a coffee shop and will continue as such; if so, then presumably, they're going to charge at some point (i.e. The "free coffee" would be in the nature of a newly-opened special).
"Torture doesn't work" lol
Guess they forgot to tell Bill Buckley.

"...as we reason and love, we are able to hope. And hope enables us to resist those things that would enslave us."
General_Magician
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Quote:
My response was based on the premise that this is actually a coffee shop and will continue as such; if so, then presumably, they're going to charge at some point (i.e. The "free coffee" would be in the nature of a newly-opened special).


Unless these guys have a very rich company with a lot of money and capital backing them up to spend on lawyers defending themselves in court; even if they do not intend to charge for their beverages and make money, they are fixing to become the barracuda's (Starbuck's) lunch in the courtroom. That godzilla foot is looming overhead and fixing to absolutely crush this tiny little flower in the courtroom (unless in reality this is a big rich company with a lot of money to spend on lawyers backing this up). There are just some people or organizations you don't mess with in the society you live in. Starbucks is certainly not a company I would want to have to face off in court against, even if I did have a legitimate legal argument. Spending time in court costs a lot of money and could include many other hidden or obvious costs as well. I think it's smarter to simply keep yourself out of court and not invite unwanted attention from some of the big guys like Starbucks for example.
"Never fear shadows. They simply mean there is a light shining somewhere nearby." -unknown

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MobilityBundle
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The trademark infringement case is tough. The trademark infringement inquiry is based on a likelihood of confusion, and it doesn't appear that ordinary consumers would mistake Dumb Starbucks for [non-dumb?] Starbucks.

But there's a more serious problem: trademark dilution. (See here for an overview of the law.) To prevail on a dilution claim, Starbucks doesn't have to establish a likelihood of confusion... they only need establish that Dumb Starbucks is somehow tarnishing or diluting the Starbucks brand. Dilution claims aren't available for any mark... only "famous" ones. I'd be willing to bet that "Starbucks" is famous. This seems like an easy win to me.

However, I've never seen parody raised as a defense in a trademark case. So there's the possibility for some new law here. (Or at least, new to me.) To be sure, the parody defense in copyright law exists and is well-recognized, so it's tempting to want to import a lot of that law into the trademark context. I haven't thought carefully about arguments why one would or wouldn't want to do that. But, for what it's worth, in copyright-land the fact that Dumb Starbucks isn't actually selling anything would go a long way.
General_Magician
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Quote:
On 2014-02-10 22:10, MobilityBundle wrote:
The trademark infringement case is tough. The trademark infringement inquiry is based on a likelihood of confusion, and it doesn't appear that ordinary consumers would mistake Dumb Starbucks for [non-dumb?] Starbucks.

But there's a more serious problem: trademark dilution. (See here for an overview of the law.) To prevail on a dilution claim, Starbucks doesn't have to establish a likelihood of confusion... they only need establish that Dumb Starbucks is somehow tarnishing or diluting the Starbucks brand. Dilution claims aren't available for any mark... only "famous" ones. I'd be willing to bet that "Starbucks" is famous. This seems like an easy win to me.

However, I've never seen parody raised as a defense in a trademark case. So there's the possibility for some new law here. (Or at least, new to me.) To be sure, the parody defense in copyright law exists and is well-recognized, so it's tempting to want to import a lot of that law into the trademark context. I haven't thought carefully about arguments why one would or wouldn't want to do that. But, for what it's worth, in copyright-land the fact that Dumb Starbucks isn't actually selling anything would go a long way.




A good legal perspective. Hopefully, "Dumb Starbucks" has the money to pay a good attorney $350 to $500 an hour to make that argument in what could be a very long case in court that could drag out for many many hours or a very good liability insurance policy that won't back out or find some technical reason to not pay on their claim for legal defense when they are sued by Starbucks.
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balducci
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Following up on my earlier post:

'Dumb Starbucks': comedian Nathan Fielder reveals he set up parody store

http://www.theguardian.com/world/2014/fe......ee-store

Seems a safe bet the store is now closed, or will close in the next day or two.
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LobowolfXXX
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Quote:
On 2014-02-10 22:40, General_Magician wrote:
Quote:
On 2014-02-10 22:10, MobilityBundle wrote:
The trademark infringement case is tough. The trademark infringement inquiry is based on a likelihood of confusion, and it doesn't appear that ordinary consumers would mistake Dumb Starbucks for [non-dumb?] Starbucks.

But there's a more serious problem: trademark dilution. (See here for an overview of the law.) To prevail on a dilution claim, Starbucks doesn't have to establish a likelihood of confusion... they only need establish that Dumb Starbucks is somehow tarnishing or diluting the Starbucks brand. Dilution claims aren't available for any mark... only "famous" ones. I'd be willing to bet that "Starbucks" is famous. This seems like an easy win to me.

However, I've never seen parody raised as a defense in a trademark case. So there's the possibility for some new law here. (Or at least, new to me.) To be sure, the parody defense in copyright law exists and is well-recognized, so it's tempting to want to import a lot of that law into the trademark context. I haven't thought carefully about arguments why one would or wouldn't want to do that. But, for what it's worth, in copyright-land the fact that Dumb Starbucks isn't actually selling anything would go a long way.




A good legal perspective. Hopefully, "Dumb Starbucks" has the money to pay a good attorney $350 to $500 an hour to make that argument in what could be a very long case in court that could drag out for many many hours or a very good liability insurance policy that won't back out or find some technical reason to not pay on their claim for legal defense when they are sued by Starbucks.


I think you'd be hard-pressed to find an insurance policy that covers you against violating someone else's trademark.
"Torture doesn't work" lol
Guess they forgot to tell Bill Buckley.

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tommy
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It is not simply a civil matter over here. I think, it can be criminal charge. i.e. Obtaining property or loss by the deception of passing off.
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balducci
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Quote:
On 2014-02-11 00:59, LobowolfXXX wrote:

I think you'd be hard-pressed to find an insurance policy that covers you against violating someone else's trademark.

It may be expensive, but that insurance does exist. E.g.

http://www.reactinsurance.com/trade-mark-insurance.htm

(Of course, I suppose it does not apply if you intentionally violate someone else's trademark. Only if you believed you were acting within your rights.)

Myself, I'm still waiting for divorce aka marriage insurance to catch on:

http://content.time.com/time/magazine/ar......,00.html

http://www.cbc.ca/news/canada/manitoba/m.......1219262
Make America Great Again! - Trump in 2020 ... "We're a capitalistic society. I go into business, I don't make it, I go bankrupt. They're not going to bail me out. I've been on welfare and food stamps. Did anyone help me? No." - Craig T. Nelson, actor.
LobowolfXXX
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Quote:
On 2014-02-11 01:21, balducci wrote:
Quote:
On 2014-02-11 00:59, LobowolfXXX wrote:

I think you'd be hard-pressed to find an insurance policy that covers you against violating someone else's trademark.

It may be expensive, but that insurance does exist. E.g.

http://www.reactinsurance.com/trade-mark-insurance.htm

(Of course, I suppose it does not apply if you intentionally violate someone else's trademark. Only if you believed you were acting within your rights.)

Myself, I'm still waiting for divorce aka marriage insurance to catch on:

http://content.time.com/time/magazine/ar......,00.html

http://www.cbc.ca/news/canada/manitoba/m.......1219262


Wow!
"Torture doesn't work" lol
Guess they forgot to tell Bill Buckley.

"...as we reason and love, we are able to hope. And hope enables us to resist those things that would enslave us."
MobilityBundle
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There's insurance on the enforcement side too, at least in patents. If I recall, roughly $25K/year in premiums buys you about $2M (per case? total?) in coverage. But before you claim your benefit, an independent lawyer has to sign off that your case meets some standard on the merits.
General_Magician
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There is always an argument for either side in a courtroom case, lawsuit or civil matter. Even if you have a signed contract in a dispute another lawyer could try to argue that somehow, you coerced the other side or tricked the other side into signing (even though you did not) the contract. Always an argument for either side and because their is always an argument to be made, that means their are always plenty of billable hours just for one court case going at a rate of $350-$500 an hour (and probably sometimes even more than that for each hour). That's why it's best to simply keep yourself out of the courtroom altogether. An ounce of prevention is worth a pound of cure.

Some may talk about the "principle of the matter" as well, but when those legal bills start rolling in, all the sudden the "principle" of those legal bills start becoming a little more important than the "principle of the matter." Not an idealistic world we live in. And the barracuda eats the fish!
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Quote:
On 2014-02-10 19:50, Tom Jorgenson wrote:
The soon-to-come Godzilla Foot will be crushing this flower very soon.

I'd erase most everything in the name and just go as Dumb S Coffee.


Great idea! I might suggest "Dumb Bucks" as a tag-on...
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General_Magician
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I don't blame Starbucks for wanting to protect their trademark. You have to do that when you are business. You might not agree with Starbucks on some issues or how they conduct business, but they have every right to conduct business and protect their trademark.
"Never fear shadows. They simply mean there is a light shining somewhere nearby." -unknown

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Tom Jorgenson
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I thought it was interesting that Starbucks didn't immediately try to shut them down when the shop got the initial publicity, they released that they were considering the situation...which means that they legitimately considered the parody aspect of the thing.

They'll still need to stop it to protect their trademarks, etc., I'd think. I'm going to try to get over there today to check it out. Free coffee is almost as good as free beer.
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