District Judge Finds Case Is Not Exceptional So As To Award Over $4.3 Million In Requested Fees.
Nov. 16, 1904. Cover of Puck. "Illustration shows a drunken Russian man holding a jug of vodka and wildly swinging a bloodly sword at a wasp representing Japan. John Bull and Uncle Sam sit in the background." Library of Congress.
Globefill Inc. v. Elements Spirits Inc., Case No. 2:10-CV-02034 (C.D. Cal.) was a trade dress infringement case brought by Globefill, maker of Dan Aykryod’s Crystal Head Vodka, against Elements Spirits and one of its primary principals over the trade dress used on competing vodka bottles. This case has a past procedural history with lots of twists and turns. Elements Spirits at first won a motion to strike the complaint because the trade dress description was too vague, a ruling reversed by the Ninth Circuit. At a first trial, Elements Spirits prevailed before a jury, only to have the Ninth Circuit reverse by saying a new trial motion should have been granted based on presenting references to a document filed in Mexico. Later, at a second trial in March of this year, the jury found in favor of Globefill, finding defendants had infringed plaintiff’s trade dress.
That brings us up to what happened last Friday, August 8, 2017. District Judge Consuelo B. Marshall determined that Elements Spirits must disgorge $871,536 in profits as the remedy for the jury infringement determination. However, she denied Globefill’s request for over $4.3 million in attorney’s fees, finding the case was not “exceptional” under the Lanham Act’s fee-shifting provision.
BLOG OBSERVATION—Media reports on this case indicated that Mr. Aykryod took the stand and in effect played design expert, measuring the Crystal Head Vodka bottle to show it was similar to the defense bottle. He reportedly was happy with the jury determination by saying words to the effect that this showed how taxpayer’s money works.