trademark fair-use
Can &quot;Dumb Starbucks&quot; be legally considered Fair Use as satire or parody?
<p>About a year ago, a new, <a href="https://i.stack.imgur.com/XZYEc.jpg" rel="noreferrer">familiar-looking</a> coffee shop opened in LA. Their reasoning for this was, basically, that it's making fun of the popular coffeehouse chain and is thus fair use:</p>

<p><a href="https://i.stack.imgur.com/2SCDS.jpg" rel="noreferrer"><img src="https://i.stack.imgur.com/2SCDS.jpg" alt="Dumb Starbucks FAQ"></a></p>

<p>Naturally, it attracted a lot of attention and was later revealed that it was really a publicity stunt created by a comedian, but he still made a statement that "as long as we're making fun of Starbucks, we're allowed to use their corporate identity" (as seen <a href="http://www.nbclosangeles.com/news/local/Dumb-Starbucks-Nathan-Fielder-Los-Feliz-Comedy-Central-244804431.html" rel="noreferrer">here</a>).</p>

<p>Had Starbucks sued for trademark infringement (which they <a href="http://www.usatoday.com/story/news/nation-now/2014/02/10/dumb-starbucks-parody-free-coffee/5357597/" rel="noreferrer">probably planned to do</a>, but the thing was actually closed <a href="https://i.stack.imgur.com/4TQaA.jpg" rel="noreferrer">for operating without a valid public health permit</a>), would the whole <em>parody as fair use</em> thing hold in court (or at least have some relevance in the case)?</p>

<p>This is likely <strong>not</strong> fair use. At first blush it appeared similar to things one might see in <em>The Onion</em> (parody print and online newspaper) or other parody publications or shows (SNL, Key and Peele, etc.). In this case, the context would have likely been deemed transformative.  However, since they are selling coffee called "Dumb Starbucks" while using their trademark, they would be be found liable if sued. You can parody a trademark brand, so long as the work is transformative such that the use of the brand goes from selling coffee to making a commentary in which the brand itself is relevant. </p>

<p><strong>Amendment</strong> I don't think this would pass the test as a parody/commentary. Originally, I failed to notice that they are actually selling coffee. This takes it out of fair use and they would almost certainly lose if sued.  If they never sold the coffee, but just had it open as a performance art (like I had originally read this) giving the coffee away to complete the parody, I think they'd be fine. However, they are literally using the <em>Starbucks</em> logo, and selling the same product. This is clearly an infringement of their copyright and not fair use. Sorry for the confusion.</p>

<p>In the <strong>UK</strong>, it would not be allowed, as the company is selling coffee while making it likely that <strong>customers will believe</strong> it is Starbucks coffee.</p>

<p>As well as Starbuck being able to take action over the use of their trade mark, trading standards could take action as the company is clearly likely to deceive customers.</p>

<p>Considering their own FAQ (as shown in the question) specifically states that they're only calling it a parody to try to get away using Starbucks' name and logo for the purpose of selling coffee, they almost certainly would not be able to get away with this in court were they sued by Starbucks. They openly admit that their intention is not parody at all, but rather an attempt to get away with trademark infringement. Their comparison to Weird Al's spoof of 'Beat It' is rather absurd, since the value of 'Eat It' is purely comedy, not just an attempt to rip off Michael Jackson's IP to sell records. Also, as a side note, Weird Al gets permission from the people he's parodying before he actually releases a parody (though he isn't legally required to do so thanks to fair use.)</p>

<p>The only thing I can see here that they might possibly be poking fun at, ironically enough, is the parody fair use exception itself (i.e. by trying to make a ridiculous example of fair use.) If that were the intention, though, it isn't a very good parody, since such a use almost certainly wouldn't hold up as fair use.</p>

<p>It is not fair use because they are, in effect, using a variation of the Starbucks logo to sell the same product, coffee, thereby competing directly with Starbucks.</p>

<p>It could be fair use if they were selling "comedy," in the form of say, post cards or posters. Then they would be selling a completely different product. That is, no one would say that people would use Dumb Starbucks' comedy about Starbucks to satisfy their demand for its coffee, or Starbucks' coffee to satisfy their demand for comedy. </p>
