On March 12, 2019, the Ninth Circuit denied Dan Aykroyd’s Crystal Head Vodka company’s request to be reimbursed $4.3 million in attorneys’ fees, after winning a lawsuit against a competing brand of vodka that had utilized the look and feel of the Crystal Head brand.

The Ninth Circuit affirmed that Globefill Inc., the maker of Crystal Head Vodka, is owed $872,000 in disgorgement of profits after a jury found its competitor Elements Spirits Inc., and founder Kim Brandi, stole Crystal Head’s bottle design for its KAH Tequila. The court explained they correctly denied Globefill’s  $4.3 million in attorneys’ fees, $13 million in disgorgement of profits and a bid to add tequila manufacturer Finos as another judgment debtor, as the case isn’t “exceptional,” which finding is required in order to award attorneys’ fees in a trademark infringement case.

“The district court did not abuse its discretion in concluding that this case was not ‘exceptional,’” the Ninth Circuit said. “In so concluding, the district court did not err in giving substantial weight to Brandi and Elements’ reasonable litigation positions while still considering the totality of the circumstances, including their intentional or willful infringement.”

In September 2017, a California federal judge granted a U.S. sales ban on KAH Tequila and more than $870,000 in disgorgement of profits to Globefill, despite the company’s request for $13 million.

U.S. District Judge Consuelo B. Marshall’s denial of the the company’s request for $4.3 million in attorneys’ fees was justified under a standard laid out by the Supreme Court in the 2014 Octane Fitness case; that standard says the winning party in a patent case can recover fees from “exceptional” cases, and that Globefill’s case doesn’t qualify as “exceptional.”

Globefill is represented by David Berg and Zenobia Harris Bivens of Berg & Androphy and Hernan D. Vera of Bird Marella Boxer Wolpert Nessim Drooks Lincenberg & Rhow PC.

Elements is represented by Thomas G. Rafferty and Keith R. Hummel of Cravath Swaine & Moore LLP and James M. Lee of LTL Attorneys LLP.

Brandi is represented by Jon Miller of Miller Johnson Law.

The case is Globefill Inc. v. Elements Spirits Inc. et al., case number 17-56574, in the U.S. Court of Appeals for the Ninth Circuit.

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