Globefill Incorporated v. Elements Spirits, Inc.

MEMORANDUM

Globefill Incorporated (“Globefill”) appeals the district court’s dismissal of its claim against Elements Spirits, Inc. (“Elements”) for trade dress infringement in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125 (a). We have jurisdiction under 28 U.S.C. § 1291 , and we reverse.

A.

1. Articulation of trade dress.

“Trade dress refers generally to the total image, design, and appearance of a product and may include features such as size, shape, color, color combinations, texture or graphics.” Clicks Billiards v. Six-shooters, Inc., 251 F.3d 1252, 1257 (9th Cir.2001) (quotation marks omitted). Globefill’s Second Amended Complaint alleged with specificity the elements of the trade dress it seeks to protect: “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.” These elements are part of the “total image, design, and appearance” of the product and therefore may constitute protectable trade dress.

2. Functionality.

We typically consider four factors in determining whether a product feature is functional: “(1) whether the design…