Written By: Justine Levy
Sitting in a local cafe in Las Vegas called Bad Owl, I found myself wondering if they acquired licensing rights to one of the biggest franchises in history – Harry Potter. Although the shop was noticeably busy, I could not help but think how pricey that license would cost.
This themed café has distinctive features that anyone familiar with the Harry Potter universe would immediately recognize. Their décor is of owls and magical ornamentation and their tagline is “Serious Coffee with a Hint of Magic.” Those acquainted with Harry Potter will recognize “serious” as an homage to Sirius Black, a significant character in the franchise. Bad Owl also serves a beverage initially entitled “butter beer lattes” but re-branded to “butterbrew” within a year of opening. [1]
When the first location opened, Bad Owl was a sensation, and a media frenzy followed. Their website highlights that they have been featured on Zagat, Cosmopolitan, Fox News, Sprudge, Eater, Thrillist, and PopSugar. [2] I recall seeing videos about the store shared on Facebook by friends and family far from Las Vegas. It is hard to believe that they have avoided the diligent legal watchdogs at Warner Bros. with that level of publicity, unlike the owners of 9 ¾ Café.
9 ¾ Café opened in 2017 in Mong Kok, Hong Kong and differs drastically from the Bad Owl locations in Las Vegas. 9 ¾ Café is less a whimsically inspired coffee shop and more of a literal interpretation of the Harry Potter films. The café is adorned with props from the movie, such as the Gryffindor coat of arms, broomsticks, and wands. There is half of a trolley sticking out from the wall almost identical to the one found at King’s Cross Station in London. And, they sell food and drink items named Professor McGonagall’s Magical Salad, Polyjuice Potion, and Muggle Drink (of which Warner Bros. have trademark registrations on). [3]
Although the restaurant opened in 2017, Warner Bros. only filed suit against the café in January 2019, citing copyright and trademark infringement. [4] It is reported that Warner Bros. is requesting the café change its name and remove the infringing items, damages for use of the copyrights and trademarks, and several injunctions. [5] This is, understandably, not the first time Warner Bros. has pursued legal action against alleged would-be Harry Potter infringers.
For example, in 2009 Warner Bros. shut down a Harry Potter-themed Halloween dinner that was to be held in West London for alleged copyright infringement. [6] Many articles on the story fail to mention the key issue Warner Bros. had with the event – the host Ms. Marmite Lover was selling tickets and charging for the dinner. [7] This means that Ms. Marmite would have been commercializing on the Harry Potter trademark and copyright.
Themed cafes (and dinners) raise many questions about the scope of trademark and copyright protection. How much use of the original material is too much? When does inspiration become imitation? Would a fair use analysis be proper or sufficient for determining boundaries of these cafes?
So, how has Bad Owl avoided a similar fate than that of 9 ¾ Café or Ms. Marmite Lover? It may be because Bad Owl is merely an inspired expression of Harry Potter instead of a literal interpretation.
[1] Bradley Martin, Harry Potter-Inspired Bad Owl Coffee Flies to the Southwest, EATER LAS VEGAS (Aug. 7, 2017, 12:00 PM), https://vegas.eater.com/2017/8/7/16104850/bad-owl-coffee-expands-southwest.
[2] BAD OWL COFFEE (Sept. 15, 2019), https://www.badowlcoffee.com.
[3] Coconuts Hong Kong, ‘Harry Potter and the Lawyers of Admiralty’: Wizard-Themed Café Sued for Copyright Infringement, COCONUTS HONG KONG (Jan. 16, 2019, 4:10 PM), https://coconuts.co/hongkong/food-drink/warner-bros-sues-harry-potter-themed-cafe-for-trademark-infringement.
[4] Lianne Tan, Copyright, Trade Marks and Character Themed Cafes, LEGALVISION (Jun. 8, 2016), https://legalvision.com.au/copyright-trade-marks-and-character-themed-cafes.
[5] Hong Kong Harry Potter-Themed Café Sued for infringement, THE COPYRIGHT LAWYER (Jan. 16, 2019), https://copyrightlawyermagazine.com/hong-kong-harry-potter-themed-cafe-sued-for-infringement.
[6] Emma Rowley, Harry Potter and the dinner party of doom, LONDON EVENING STANDARD (Oct. 26, 2009, 11:19 AM), https://www.standard.co.uk/news/harry-potter-and-the-dinner-party-of-doom-6761727.html.
[7] Thom Geier, Harry Potter and the Deathly Lawyers: Warner Bros. blocks a fan’s Potter-themed dinner party, ENTERTAINMENT WEEKLY (Oct. 27, 2009, 3:12 PM), https://ew.com/article/2009/10/27/harry-potter-lawyer-dinner-party.
