March 29, 2017

Aykroyd’s Skull Vodka Co. Tells Jury Rival Made Knockoffs

Law360, Los Angeles (March 15, 2017, 5:01 PM EDT) — The maker of actor Dan Aykroyd’s Crystal Head Vodka told a California federal jury during Wednesday’s opening statements in the trade dress infringement case that a rival spirits company is selling tequila in a “cheap knockoff” of its distinctive skull-shaped bottle.

The suit sees Crystal Head maker Globefill Inc. taking a second crack at convincing a jury that Elements Spirits Inc.’s KAH brand tequila is infringing its trade dress — a prior trial ended with a defense verdict, but the Ninth Circuit ordered a new trial.

At the outset of the trial being held in U.S. District Judge Consuelo B. Marshall’s downtown Los Angeles courtroom, Globefill’s attorney David Berg of Berg & Androphy told eight jurors that his clients, Aykroyd and his co-founder, John Alexander, spent years pouring hard work into creating the first ever skull-shaped alcoholic beverage bottle to be brought to market in the U.S., only to see the “odd coincidence” of Elements launching its own product in similar bottles two years later.

With Aykroyd and Alexander sitting nearby, Berg told the jury that Globefill searched around the world to find a glassmaker in Italy that could make a bottle of the appropriate quality, only to see Elements copy the idea, paint a design on its own bottles and head to market with an inferior product. As he said this, Berg had the jury pass around a Crystal Head Vodka bottle and a white-painted KAH Tequila bottle.

“What we will tell you is, they just painted our bottle,” he said. “It is a cheap knockoff made, you will not be surprised to find, in China,” he said.

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The company filed suit against Elements and its founder Brandi in March 2010, alleging that Elements’ KAH brand tequila, which likewise is sold in a skull-shaped bottle — albeit with decorations meant to resemble Mexican Day of the Dead art — infringed its bottle trademark.

The suit headed to a jury trial before Judge Marshall in November 2013, and the jury returned a defense verdict on Dec. 3, 2013. Globefill filed a motion for judgment as a matter of law or a new trial in January 2014, which was denied by the district court.

In February 2016, however, the Ninth Circuit vacated Elements’ win, finding that Judge Marshall had erred by denying Globefill’s motion for a new trial. It agreed with Globefill’s assertion that Elements had improperly referenced similar legal proceedings in Mexico during its closing statements in the trial.

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Globefill Inc. is represented by David Berg, Zenobia Harris Bivens, Victoria R. Mery and Michael M. Fay of Berg & Androphy, and Hernan D. Vera of Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC.

The case is Globefill Inc. v. Elements Spirits Inc., case number 2:10-cv-02034, in the U.S. District Court for the Central District of California.

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