Hookah Copyright Up in Smoke

The shape of a hookah water pipe, used to smoke tobacco, cannot be copyrighted, the 9th U.S. Circuit Court of Appeals ruled Thursday.

Inhale, Inc, sued Starbuzz Tobacco claiming Starbuzz sold a hookah that was identical in shape to Inhale’s, but the trial judge in Los Angeles found the shape of the container is not protectable by copyright.  The 9th Circuit agreed.

The hookah is a functional article but can be copyrighted only if it incorporates sculptural features that can be identified separately and can exist independently from the utilitarian aspects of the container, the court held.

A hookah is a device for smoking.  It contains coals that cause the tobacco to smoke.  A user inhales through a tube that forces the smoke to travel through water held in a container at the base of the hookah.  The water cools and filters the smoke.

Inhale produced a hookah with a skull and crossbones on the side.  Starbuzz, owned by Salim Elhalawani, allegedly produced a hookah without the skull and crossbones but the same shape as Inhale’s.

Inhale registered its copyright in 2008.

Judge Diarmuid O’Scannlain wrote the opinion, joined by Judge Susan Graber. Judge Carlos Bea partially joined in the result.

Case:  Inhale, Inc. v. Starbuzz Tobacco, Inc., No. 12-56331




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