On April 15, 2008, after a lengthy series of trademark lawsuits stretching back to 2002 between Quiksilver, Inc. and Kymsta Corp—a small Los Angeles based women’s clothing manufacturer—United States District Court Judge Valerie Baker Fairbank entered final judgment in Quiksilver’s favor, against Kymsta.
According to Michael Yoder, partner in charge of litigation at the Newport Beach office of O’Melveny & Myers who argued for Quiksilver, “The judge has ordered Kymsta to phase out all use of ‘Roxywear’ over the next eighteen months.”
James Nguyen, a partner at Foley & Lardati – LLP in Los Angeles who is representing Kymsta says that his client is not pleased with the outcome of the trial. “Kymsta believes the judgment is improper and unfair,” he explains. “At the trial there was an original jury verdict that was not enforced. Originally, when the jury came back on March 11 they rendered a verdict that was essentially a defense verdict in favor of Kymsta. Then Quiksilver was able to persuade the judge—and we think this is why the ultimate result was very unfair—to order the jury back the next day and re-deliberate. Which is a very rare occurrence. In our view, the jury was sort of strong armed into changing its verdict to be against Kymsta.”
Yoder says Nguyen’s statements are not accurate. “On the threshold issue of first use when the jury came back initially, they came back for Quiksilver. For Mr. Nguyen to say the jury came back in favor of Kymsta is just not true,” Yoder says. “The jury though had answered certain questions regarding infringement in a way that was ambiguous and potentially inconsistent, and so the judge then determined that to clarify the ambiguities and inconsistencies she would ask the jury to further deliberate, and gave the jury additional instructions to try and remedy some of the ambiguities. The jury then went back to deliberate, and came back with what turned out to be the final verdict.”
Click Here for an exclusive interview with Quiksilver CEO Bob McKnight conducted on Wed. April 16.
Click Here for an exclusive interview with Kymsta Corp Owner Roxanne Heptner conducted on Fri. April 18.
Complete Timeline Of The Trials
Quiksilver says it approached Kymsta Corp in 2002 after noticing its “Roxywear” line appearing in retail accounts like Nordstrom and Delia’s, in hopes of reaching an agreement. When the two companies were unable to do so, Quiksilver filed a lawsuit in federal court in Los Angeles seeking to stop Kymsta’s use of the Roxywear name. Kymsta Corp. filed a counter suit contending that the Roxywear name was used before Quiksilver made Roxy a distinct brand.
After the two-week jury trial in 2002, Federal Judge Dickran Tevrizian decided the matter himself. Quiksilver says that the judge ruled the evidence presented by Kymsta wasn’t strong enough to present to a jury. The court order allowed Kymsta Corp. to sell clothing with the Roxywear name, but imposed various restrictions on the company—preventing Kymsta from licensing Roxywear and from using the name on garments or hangtags.
Kymsta’s CFO Arthur Pereira told reporters: “At first, we were pleased with the trial result because we were allowed to sell Roxywear clothing to any retailer. However, upon further reflection, we believe some of the court’s decisions were erroneous and that some of the restrictions imposed upon our business are unreasonable.”
On March 18, 2004 Kymsta Corp. filed an appeal to the ruling from the previous trial.
On October 6, 2006 The United States Court of Appeals for the Ninth Circuit concluded that the trial judge in the United States District Court for the Central District of California incorrectly decided the trademark case himself, rather than permitting the case to go to the jury, and the case was sent back to the trial court to be retried before a jury.
On March 19, 2008, after another round in court—this time in front of a jury—the Court ruled in favor of Quiksilver.
On April 15, 2008 United States District Court Judge Valerie Baker Fairbank entered final judgment in Quiksilver’s favor.
Download The Official Final Judgment/ Court Documents Below:
Information On Other Pending Quiksilver Inc. Cases Below: