Dumb Starbucks, the Los Feliz, CA, pseudo-coffee shop with the look and feel of the ubiquitous Seattle-based Starbucks Corporation has reopened discussion as to what constitutes “fair use” of another’s trademark, and what is just plain trademark infringement. For a few days the origin of the single Dumb Starbucks location was unknown, but Comedy Central comedian Nathan Fielder quickly confessed to be the man behind the store. Fielder also explicitly stated that although Dumb Starbucks was a “fully functioning coffee shop, for legal reasons Dumb Starbucks needs to be categorized as a work of parody art.” For other legal reasons, the Los Angeles County Health Department posted a notice of closure on the store’s front door.

Starbucks Corporation was as swift as ever to respond. The humor was appreciated but the use of the Starbucks name, a protected trademark, was not received as warmly.  While we wait to see what Starbucks’ next move will be, the doctrine of fair use within trademark and copyright law is being scrutinized in speculation. From a business standpoint, Starbucks Corporation could do without the big-bad-wolf image it has been cultivating. But, from a legal standpoint, could Starbucks have a strong case?

The essence of any trademark infringement case would rest upon a likelihood of consumer confusion. While courts have applied a flexible likelihood of confusion test in trademark infringement cases, most courts factor in the strength of the trademark, the similarity of the marks, the quality of the alleged infringer’s product and their intent in using the mark.

Generally, an identical-looking mark to a strong mark like Starbucks’ green background featuring the siren, would cause confusion. However, in works of parody, the strength of mark, and its recognizability to the average consumer may make it easier for the audience to realize that the work is a parody – that the work has an element of jest. Sure, Dumb Starbucks added the word “dumb” to everything from a Dumb Venti to Dumb Norah Jones Duets CDs in order to distinguish itself from the real deal. But many feel that the use of the word “dumb” is insufficient in light of the fact that Dumb Starbucks went through grande pains to get the store to look identical to a regular Starbucks café. A show like “Saturday Night Live” can get away with using trademarked words, phrases and logos because everyone already expects that the skits are parodies, leaving no room for a likelihood of confusion. The most convincing allusion to parody in this case is that Dumb Starbucks handed out coffee and pastries for free – a stark difference to the usual, luxury-laced prices of a real extra-hot half-caff double skinny vanilla latte.

Still, everyone behind Dumb Starbucks has admitted that the main reason for the creation of the store was for marketing purposes, not just to crack a joke; the footage is going to be used to promote the second season of Fielder’s Comedy Central show “Nathan For You”. And from my perspective, it seems like that’s still a legitimate use of the Starbucks trademarks. Many courts, most notably the Ninth Circuit, have concluded that parodies fall within the Federal Trademark Dilution Act’s “noncommercial use” exception, making parodies, consumer reports and news reports (which all have some commercial value, through advertising, sponsorship and the like) non-actionable “noncommercial speech”.

In a vacuum, it is easier to spot fair use, noncommercial speech and true parodies. In reality the lines between fair use and trademark infringement are blurred when media coverage turns parody into a lucrative publicity stunt, drumming up advertisers’ interests and a tapping into a wider viewer base. Perhaps a deep-pocketed lawsuit would help to define the boundaries of fair use, and put this whole dumb ambiguity to rest.