This case appeared to be dead as a skull but its death was premature. The Ninth Circuit Court of Appeals has revived a trademark dispute between a vodka and tequila company that both use skull head bottles to distribute spirits.
Globefill Inc. is the owner of Crystal Head vodka that has been sold throughout the United States since 2008. In association with the bottle the company owns a registered trademark for the non-functional aspects of the bottle, mainly the skeleton face. Comedian/actor Dan Aykroyd has been a pitch man for the company and has some ownership stake in the business. Elements Spirits, Inc. is the owner of KAH Tequila that in 2010 began distributing its tequila in a skull shaped bottle as well.

![Image skull bottles]( "Image skull bottles")
Crystal Head on left, KAH on right.
In 2010, Globefill sued Elements for trademark infringement claiming that the KAH bottle was confusingly similar to the Crystal Head trademark. Fast forward through years of discovery and eventually a trial was held and a jury found in Elements’ favor and against the claims of infringement. Globefill filed a motion for a new trial and appealed the jury decision and last week it got a pleasant surprise. Three presiding judges at the Appeals Court reversed the decision not to grant Globefill a new trial. According to the court, Elements had improperly referenced a similar case being held in Mexico over the skull bottles. Globefill contends that Elements told the jury Globefill admitted to a Mexican official that the bottles were not confusingly similar. Regarding this statement, the court held that Elements had misrepresented the contents of a document and falsely implied that Globefill deliberately concealed documents from the jury. Although limited to the closing argument, the court reasoned that this misconduct sufficiently permeated the entire proceeding and granted Globefill a new trial. Ouch, its hard to know how much effect this misstatement had on the jury but now Elements is going to have to redo the trial and hope for a similar verdict. Perhaps a shot of tequila might take the sting out of this lose.