Who knew that comedian/actor Dan Aykroyd was co-founder of a vodka brand?
And that not only is this vodka award-winning, but that it is delivered in a skull-shaped bottle?
Interestingly too, Dan Aykroyd is dead serious about making sure to enforce his rights of this very distinctive registered trade dress of his.
Aykroyd and his brand, Crystal Head Vodka, claimed that a rival spirits company is selling tequila in a “cheap knockoff” of its eye-catching skull-shaped bottle. A trade dress infringement suit dealing with these distinctive alcohol bottles came to an end this week. Crystal Head Vodka (Globefill Inc.) and KAH Tequila (Elements Spirits Inc.) are both presented in skull-shaped bottles, and unfortunately, KAH Tequila met its doom.
This matter was submitted to a California federal jury and marks the second time Crystal Head
has brought such a case against KAH Tequila asserting infringement of its trade dress rights and its common law rights in the skull bottle. Crystal Head Vodka’s skull bottle was created and designed in a way so unique and distinctive that the USPTO registered the bottle as a non-traditional product container trademark. A nontraditional trademark is any type of trademark which does not belong to the conventional category, such as those consisting of letters, numbers, words, logos, pictures, symbols, or combinations of one or more of these elements. Nontraditional marks include marks based on appearance, shape, sound, smell, taste and texture but still fulfill the essential trademark function of uniquely identifying the commercial origin of products or services.
Comedy legend Dan Aykroyd’s Crystal Head Vodka brand launched in 2008 and distributes its vodka in a glass bottle. The protectable trade dress is “a bottle in the shape of a human skull, including the skull itself, eye sockets, cheek bones, a jaw bone, a nose socket and teeth, and including a pour spout on the top thereof”. KAH Tequila was founded by Kim Brandi as part of Elements Spirits venture in 2009, and presents the tequila in ceramic calavera designs. Kim Brandi tried to distinguish the containers: “Crystal Head’s glass human-skull package, which is nearly identical to Black Death’s iconic skull mascot, contains vodka, and there are no obvious or explicit ties to Mexico’s history, culture and Dia de los Muertos. What our products and packaging reflect is that Mexico is Tequila, not vodka. KAH Tequila was inspired by and built around whimsical, hand painted Calaveras used in Day of the Dead practices to symbolize the souls of the departed return to join their families and friends in the land of the living.”
Globefill claims Elements was making a “cheap knockoff” of Crystal Head’s painstakingly created bottle, and was doing so to try and profit from the goodwill the brand had established. In trade dress infringement cases, the trade dress owner must establish a likelihood of confusion in order to prevail. During the trial, consumer survey experts testified as to whether or not the two bottles were confusingly similar, and Aykroyd himself played design expert, pulling out a ruler on the stand to measure the various angles and proportions the two brands’ bottles share, saying “There’s just so much that matches up I see there why someone would think this is a line extension of ours, and confusion is obvious.” (Dan Aykroyd Breaks Down Booze Bottle Angles In IP Trial)
After deliberations in Los Angeles, the jury on Wednesday delivered a unanimous verdict in favor of Crystal Head maker Globefill Inc. The jury found that KAH was likely to confuse ordinary consumers into thinking it was made by, or affiliated with, Crystal Head, and had been designed with this objective in mind.
Just a heads up, if you have “a vessel worthy of one of the world’s purest vodkas,” according to crystalheadvodka.com, you would probably be just as aggressive to protect that trademark.