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Trademark and Trade Dress Infringement

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00:04
dan aykroyd
00:06
and my dearest friend john alexander
00:09
who’s an artist dan of course is the
00:11
famous comedian
00:12
had a case against cod tequila dan
00:15
and john went into the liquor business
00:19
and john had an idea of selling
00:21
he wanted to sell to uh tequila in a
00:24
skull-shaped bottle
00:26
and dan couldn’t do that because he has
00:28
the tequila
00:30
license for canada with patron and so
00:33
they put vodka in it and became crystal
00:35
head vodka which has a very large
00:37
following now
00:38
somewhere along the way two years after
00:42
dan and john came to market and it took
00:44
a lot of money and a lot of time and
00:46
effort they came to market
00:47
with a very big no pun intended splash
00:51
and started selling wildly until cod
00:54
tequila came along
00:56
kha tequila was a company owned by a
00:58
woman named kim brandi
01:00
and kim brandi sold her tequila in a
01:03
skull-shaped bottle
01:04
and if you tilted the bottles just right
01:07
on the surface they were identical
01:10
now she had painted it up to make it
01:11
look different but
01:13
uh the the similarities were too great
01:15
in the structure of the bottle
01:17
and oddly enough there has never been
01:20
an alcoholic beverage sold in a
01:23
skull-shaped bottle
01:24
you’d think there would be but there
01:25
hadn’t been so they had the trademark
01:27
they had the rights did my friends
01:30
and she had clearly infringed
01:33
well it was tried and i won’t even tell
01:35
you the name of the law firm that tried
01:37
it but they lost it
01:38
and to their credit they reversed it on
01:40
appeal and dan and john came to me and
01:43
asked me to try it which i did
01:45
and just a very important part about
01:48
this you can find this if you’re
01:50
interested in above the law if you if
01:53
you uh
01:54
uh google booze and dan aykroyd you’ll
01:58
find the story they did
01:59
but they recount the story of the woman
02:02
who owned ka tequila
02:04
she had in the first trial had told a
02:07
very sympathetic story
02:09
saying that she could not have had any
02:12
she had no opportunity to
02:14
copy their bottle she did it at the last
02:16
minute
02:17
she got her bottle done before ours came
02:20
to market
02:21
and she could not have been copying it
02:23
because she was so distracted
02:25
because she had lost her daughter and
02:28
dan aykroyd’s wife told him at the time
02:30
we’ve lost
02:31
it was such a sympathetic story that
02:33
jurors were crying
02:35
so we did a little background and in the
02:37
second trial
02:38
i asked her i said miss brandy kim
02:41
brandi what’s her name on
02:43
cross i said you’ve told us
02:46
in this in this case that in fact your
02:49
bottles
02:50
look skyward you’ve lost your daughter i
02:52
said now i don’t mean to be insensitive
02:54
but i need to know the date of your
02:56
daughter’s death
02:58
for our timeline and she said mr berg
03:00
you don’t understand i said yes i do
03:02
your daughter’s not dead
03:04
and in fact she’d been lying about that
03:07
and
03:07
the jury’s head snapped back and so did
03:10
some of my colleagues whom i hadn’t told
03:13
and so that led me to a chapter of my
03:15
book
03:16
in the in the second edition of the
03:17
trial lawyer which is entitled not even
03:20
death is certain
03:21
lawyers have to be skeptics and we got a
03:24
willful infringement finding and
03:26
legal fees and have actually shut her
03:28

Houston, TX commercial litigation attorney David Berg tells the story of winning a verdict for trademark and trade dress infringement for Dan Aykroyd.

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