Diageo North America, Inc., the owner of the Bulleit brand family of whiskeys, sued competitor W.J. Deutsch & Sons Ltd. for allegedly infringing upon the trade dress of Diageo’s Bulleit bottles. Specifically, Diageo alleged that Deutsch’s Redemption whiskey bottles bear many similarities to Bulleit bottles, including “

(a) clear canteen-shaped glass bottle with rounded shoulders;

(b) embossed brand name above the label;

(c) arched text in the top line of the embossed brand name;

(d) convex text divider between the components of the embossed brand name (e.g. ‘REDEMPTION’ separated from ‘WHISKEY REVIVAL’);

(e) arrow-shaped text divider on the label;

(f) border of parallel lines on the label; and (g) cork bottle cap with black top.” Deutsch countersued, claiming that Diageo’s trade dress registration should be cancelled on the grounds that its bottle shape is unprotectable as being functional. Are the features listed by Diageo functional or simply cosmetic? Who should the court rule for?