Member Article

International infringers are notoriously difficult litigants to get in touch with; all too often the methods of service routinely available in the United States to serve defendants and bring them into court to halt infringement fail when exported overseas. The defendants in these cases often have little incentive to cooperate with either the court or whatever physical mechanism or service might be available in their jurisdiction. In today’s connected world however, most of them can be relied upon to have an e-mail address and a social media account, such as Facebook or LinkedIn.  

Possibly offering a glimpse of the future, an Eastern District of Virginia magistrate court recently approved the use of Facebook and LinkedIn for service in an international trademark infringement case. The case, Whoshere, Inc. v. Gokhan Orun, Civil Action No. 1:13-cv-00526-AJT-TRJ (Feb. 20, 2014), involved a Turkish infringer who provided not one but two e-mail addresses on his two social media accounts. Traditional service through the Turkish Ministry of Justice on the plaintiff proved difficult. However, prior to filing the lawsuit the Plaintiff had interacted with the Defendant through the e-mail addresses provided via social media. After filing, the plaintiff provided notice and a courtesy copy of the lawsuit to the defendant at this e-mail address and through his social media accounts.

The Magistrate Judge noted that Rule 4(f)(3) permits any method of service that “provides reasonable assurance” that the Defendant will be notified of the suit and is not prohibited by international agreement. Ruling that the Court could tailor the method of service to suit the case, the Court found that “service of process on defendant by email and social networking websites identified by defendant as belonging to him complies with both Rule 4(f)(3) and constitutional due process.”

By removing road blocks to quick and reasonable service on defendants that are difficult, if not impossible, to serve under traditional methods, Whoshere may be signaling a willingness by Courts to accept the reality and reliability of today’s connected world rather than get bogged down in service disputes. While decisions such as this mean service on international defendants may be simplified in the future, it may also prove useful at a tool for plaintiffs seeking to effectuate service on elusive and evasive domestic defendants as well. If faced with such a situation, it is advisable that you take certain steps:

1. During any pre-lawsuit conversations with the defendants, confirm ownership of all email and social media accounts;

2. Document that the defendants use email or social media accounts as a means of communication;

3. Provide courtesy copies of the suit to the defendant’s email or social media accounts, and document any receipt and acknowledgment; and

4. Document your efforts to serve under traditional methods and any acts by the defendant to intentionally avoid service. 

 

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