Recently, a coffee restaurant opened up near Los Angeles calling itself “Dumb Starbucks”. It has nothing to do with the established, and well-known coffee restaurants that operate under the Starbucks trademarks. The new restaurant even employs logos similar to those owned by Starbucks and a similar trade dress.
The new restaurant is claiming legal protection from trademark infringement under the doctrine of parody. Starbucks says it is aware of the new restaurant calling itself “Dumb Starbucks” and is looking into its legal options.
So the question becomes: can the new restaurant shield itself from legal liability for trademark infringement by employing a defense based on parody? In the opinion of this writer, this defense fails. (It is likely that this is nothing more than a grandiose publicity stunt, and the new restaurant will voluntarily relinquish the “Dumb Starbucks” moniker in short order. The prospect of litigating this issue would seem to be unappealing to the upstart.)
The defense of parody to trademark infringement is an extension of a trademark defendant asserting its first amendment right to free expression. However, freedom of speech under the first amendment is not absolute. In the context of trademark infringement, a defense of parody is more likely to be upheld where the asserted parody is done for the sake of humor. Such does not appear to be case here. Rather, the motivation appears solely to be commercial gain. Moreover, the fact that the very similar, if not identical use of rather famous trademarks are utilized in connection with identical goods and services further would seem to negate the parody defense. This would seem to be a case where the use of the trademarks leads to the likelihood of confusion in the marketplace, therefore a finding of infringement and the defense of parody fails.