Anonymous Infringers Are Annoying
Have you ever tried to contact someone who owns on a domain you want to purchase because it is similar to yours or uses a name or logo on a website that is confusingly similar to yours? I bet you’ve had trouble finding their physical address or figuring out which country they are located in, much less giving them “notice” of your request. And it takes a lot of research using conventional and unconventional investigative methods to find a cybersquatter masking domain ownership information using a privacy service. In fact, they rely on these practical barriers to avoid efforts to stop their unauthorized or illegal activities.
A New Message: You’ve Been Sued
Now imagine that you decide to sue one of these anonymous parties because of the harm they are causing your company—how do you let them know about the lawsuit? An old-fashioned process server won’t work. Well, there’s good news. As a Federal Court in Alexandria, Virginia recently concluded, you may be able to serve the complaint using email, LinkedIn, Facebook, Google+, or another social media service. Welcome to the brave new world of litigation.
Here’s how the electronic service issue surfaced in the Virginia case: WhosHere, Inc. got fed up with what appears to be a Turkish resident peddling a business and an app “WhoNear” and “whonearme” that is similar to WhosHere’s app that lets people find and chat with others who are nearby. WhosHere® also has a Federal trademark registration and felt threatened by the WhoNear app, which also provides proximity searching for contacts and connections with people nearby.
After trying to contact the WhoNear app owner several times over email and Skype to resolve the trademark infringement concerns, WhosHere sued him in the Eastern District of Virginia (the “Rocket Docket”) for trademark infringement, cybersquatting, and unfair competition. Then it tried to serve the complaint under the Hague Convention, which is a multilateral treaty that provides a system for service of process of judicial documents in civil and commercial matters on foreign citizens and companies in a signatory state (without consular and diplomatic services). The Turkish Ministry of Justice returned the service papers, however, because the defendant could not be located at the physical address provided in the papers.
Are Web 2.0 Service Options Appropriate?
Under the Federal Civil Rules, a party can serve individuals in a foreign country “by means not prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(3). Since it could not successfully serve under the Hague Convention, WhosHere asked the court for permission to serve the defendant using two email addresses, his Facebook account, and his LinkedIn account. Previously the defendant had responded to a letter sent to one of the email addresses and had provided the other email address. And his Facebook and LinkedIn profiles confirmed his involvement with the WhoNear app that the plaintiff complained about. The court decided that these methods of electronic service satisfied due process concerns, and were reasonably calculated to provide notice to the defendant of the lawsuit in this case.
Also, the court determined that Turkey has not objected to service of process using these electronic means. And here’s where the shortcomings of the aged Hague Convention become clear: Turkey has objected to service of process under Article 10 of the convention, which covers service using postal channels or judicial officers, officials, or other “competent persons” in Turkey. But the Convention doesn’t discuss service through electronic means, so the court determined that Turkey hasn’t objected to electronic service and the alternative methods proposed by WhosHere do not violate any international agreement. Other trial courts have also exploited the fact that the Convention doesn’t speak to service by electronic means to sanction email and social media-based service on defendants in other countries.
Lots of people and businesses use LinkedIn and other social media to promote their business, network, and make connections. This decision is yet another sign that these technologies are also a viable means for serving parties that are hard to locate and serve using process servers, good old snail mail, or other conventional means.
If you’re interested in reading the Virginia court’s opinion regarding this service issue, you can find it here.