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Monday, May 10, 2010

Federal Court Authorizes Email Service of Process of Chinese Defendant

Trends In International Litigation : International Business

Lawyer & Attorney : Ed Joffe : Joffe & Joffe Law Firm :
Miami, Florida Global Customs & Trade Issues

Published By Edward M. Joffe of Joffe & Joffe, LLC

Chanel, Inc. brought suit against Zhong Zhibing, a/k/a Zhong Zhiping under the federal trademark laws
for illegally promoting, advertising, selling, offering for sale, and distributing products bearing exact copies of Chanel-registered trademarks in the Western District of Tennessee through various fully interactive commercial internet websites.

After filing suit, Chanel hired several investigators to learn Defendant's name, physical address, electronic mail address, and other identifying information. One investigator purchased a Chanel-branded handbag, which was processed entirely online, which order included shipping and billing information, payment, and confirmation. The only contact information gleaned were several email addresses. Another investigator working in China was able to find the defendant through a telephone number, but never a physical address. As a result of its inability to find the defendant’s physical location, Chanel asked the court for leave to serve by email.

The Court noted that under Fed. R. Civ. Pro. 4(f), a plaintiff was required to use the Hague Convention
for service of process in China. However, the Hague Convention did not apply if a physical address did not exist. Rule 4(f) provides that a party may use an alternative means to affect service if two conditions are met: (1) the party obtains the permission of the court, and (2) an international agreement does not otherwise prohibit the means of service approved. See Fed.R.Civ.P. 4(f)(3)

Here, the court noted that service by e-mail did not appear to violate Chinese law. Article 84 of the Civil
Procedure Law of the People's Republic of China states that “[i]f the whereabouts of a recipient ... is
unknown ... the document shall be served by public announcement.”

Likewise, use of email under the facts of the case met the constitutionally mandated due process equirements of “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

Under all of those circumstances, the court allowed service by email.

Practice Pointer: Counsel for Chanel did its due diligence, including using a Chinese investigator, in trying to find a physical address for the defendant and only then asked the court for leave to serve by email. Absent a strong record of these efforts, the court it is unlkely the court would have granted the request.