As law students, it’s likely that we have all been “that person” in a conversation. You know; that one annoying guy (or girl) that tries to come off as smarter than they really are, or even if they really are that intelligent, tries to flaunt intelligence in front of others. Let’s call this person the peacock. The peacock is often charismatic, always confident, and loves to strut his stuff.
I mean, we’re proud of what we’ve learned, so we have a good reason be a peacock, right? Wrong.
We all know how annoying it is to come across a peacock, flaunting knowledge and using big words. But you know what is even more annoying than encountering a peacock? Being called out for being one. Especially if you have built your whole personality around being a peacock, or even worse, your business.
I consider Starbucks to be the peacock of the coffee-world, and maybe even of all drive-through businesses nationwide. I can’t pronounce half the items on their menu, and even more embarrassingly, after I butcher the pronunciation of my beverage of choice, I make a logical guess as to what size I’m attempting to order and hope for the best. “Demi, short, tall, grande, venti or trenta?” Excuse me?
But this is what Starbucks has built its business on, and people seem to love it. In fact, Starbucks brought in a whopping $14.9 billion in total revenue for the 2013 fiscal year. Like I said, the peacock is often charismatic.
With Starbucks having built such a successful business on these peacock-like practices, its understandable that they are not happy when a competing coffee shop attempts to, not only call Starbucks out for being a peacock, but also take some of Starbucks’ customers.
A parody coffee shop, calling itself “Dumb Starbucks,” appeared in Los Angeles earlier this year. Even though the owner of Dumb Starbucks admitted that the purpose behind the parody was for a Comedy Central program, Starbucks still was upset, and understandably so. Remember, no one likes to be called out for being a peacock.
Dumb Starbucks reportedly mimics the Starbucks menu, but to add to the parody, places the word “dumb” in front of every menu item. Furthermore, the logo looks exactly the same, but with one small change: you guessed it, the addition of the word “dumb.”
In an email to USA Today, Starbucks said, “… while we appreciate the humor, they cannot use our name, which is a protected trademark.”
If Starbucks were to pursue an action for trademark infringement, the standard the company would have to prove is “likelihood of confusion.” To determine if this standard is met, courts generally look as several factors, including (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant’s intent.
So the issue for Starbucks, then, is whether the word “dumb” makes clear that the chain is not associated with the actual Starbucks and is instead a simple parody.
“My gut tells me a court would be bothered by how much of the Starbucks trademark was used. It’s not just the word but they also made the store look just like it,” said Mark McKenna in an interview with USA Today. McKenna is a law professor at the University of Notre Dame who specializes in trademark law. Starbucks has not currently decided whether to file suit.
So the morale of this story is this: If you’re going to be a peacock, be a Starbucks and become a billionaire. Second, if you’re going to call someone out for their peacock ways, inform yourself on trademark law before doing so.
* Caitlin S. Hale is a second year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in English, with a minor in Communication Studies, and received a certificate of technical and professional writing and communication from East Carolina University. Upon graduation, she intends to practice labor and employment law.