Jeweler not giving up yet in dispute over plumeria designs


POSTED: Saturday, August 29, 2009

Although an appeals court upheld a decision against a Los Angeles company for “;trade dress”; infringement of a Honolulu company's plumeria jewelry, defendant Alan Hon is now taking the battle online.

Hon, the owner of Po Sun Hon Co., which lost the seven-year-long case, has launched a Web site — againstplumeriamonopoly.com — alleging that he was the victim of legal malpractice.

He's planning to challenge the appeals decision, and also has filed a petition seeking to cancel Cosmos Jewelry Ltd.'s' trademark for plumeria jewelry.

The battle first began in 2002 when Honolulu-based designer Denny Wong of Cosmos filed suit against Hon alleging “;trade dress”; and copyright violations.

Trade dress refers to the distinctive image of a product, like the shape of the famous Coke bottle, for instance.

Wong said Hon was imitating the plumerias from his copyrighted “;Tropical Memory Collection — Plumeria Lei Series,”; flooding the market with a cheaper version of his designs.

In August 2006, after the case went to bench trial, a U.S. District Court judge in California ruled in favor of Cosmos, awarding it with $2.3 million in damages plus $453,371 in attorneys' fees.

The case was challenged last year before the Ninth Circuit Court of Appeals, which upheld the District Court's decision in March.

The Circuit Court judges said that the decision had to be so clearly erroneous as to “;strike us as wrong with the force of a 5-week old, unrefrigerated dead fish.”;

But Hon is not giving up.

“;With so many people making and selling their own plumeria jewelry in Hawaii, how could one jeweler claim to have a monopoly?”; Hon wrote on his Web site.

Hon also claims on the site that his attorney, John Yates of Berman, Mausner & Resser of Los Angeles, requested the removal of critical physical jewelry evidence from the case without his knowledge or consent.

So he's filed suit against the Los Angeles law firm, alleging professional negligence, breach of fiduciary duty and breach of contract.

“;The results of the trial were astonishing to me, and should be shocking to anyone who knows the facts,”; wrote Hon.

The District Court ruled that Hon had not violated Cosmos' copyrights for a plumeria flower, which is a work of nature. Also, that the polished edge on the flower contrasted with a matte finish to show contrast was common in the industry. But the court concluded that Cosmos had trade dress rights for plumeria flowers in yellow gold with the matte petals and polished edges.

Hon was required to pay the profits from his entire business, and not just from his plumeria jewelry.

Andy Ninh, a spokesman for Hon, said the plumeria jewelry accounted for only about $180,000 in sales and that his more popular pieces are his cutout designs.

“;It's going to be a long battle,”; said Ninh.

On the Web site, Hon also says Cosmos is misleading consumers into thinking its products are made in Hawaii when really they are made in Hong Kong and China.

Wong declined to comment on the Web site but acknowledged that some of his jewelry is made in China and labeled as such.