An Alexandria U.S. District Court has approved service of a trademark infringement suit via Facebook, LinkedIn and email, in a Feb. 20 decision in WhosHere Inc. v. Orun (VLW 014-3-103).
In 2008, plaintiff Whoshere Inc. launched an app that “lets you meet and chat with people nearby.” Whoshere’s lawsuit puts it in more technical terms: It’s a “social proximity networking application” that lets users create online profiles and meet people near them with similar interests.
The company is suing Gokhan Orun, who allegedly lives in Turkey and is doing business as “WhoNear” and “whonearme,” both of which are unauthorized imitations of the WhosHere® trademark, the plaintiff company says.
Using email and Skype, the plaintiff notified the defendant of the alleged infringement and tried to resolve the issue. Whoshere finally sued in July 2013, for trademark infringement, unfair competition and cybersquatting, and sent a courtesy copy of the suit to the defendant. He has not responded to the suit or to any further communications, the plaintiff says.
The plaintiff tried to serve process through the Turkish Ministry of Justice under Rule 4(f)(1), which governs service abroad in civil or commercial matters. But the Ministry returned the summons and complaint to the U.S. Office of Foreign Litigation because the defendant could not be located at the address the plaintiff provided.
So Whoshere went to court seeking permission to use alternate contact points for the defendant.
Courts have been flexible in applying Rule 4(f)(3) to allow service by email and social networking sites, said U.S. Magistrate Judge Thomas Rawles Jones Jr. He cited decisions from federal courts in New York, Georgia and Florida.
Turkey has not specifically objected to service by email or social media networking sites, as signatories to the Hague Convention may do. Jones said in this case, the alternative means of service satisfied due process because they were reasonably calculated to provide notice under the circumstances.
The defendant had responded to a contact through one of the identified email addresses, and had provided the plaintiff with the additional email address. His Facebook and LinkedIn accounts under his name also carried information about his involvement with the WhoNear app.
Jones also said the plaintiff did not have to first use Rule 4(f)(1) or (2) before seeking court approval for service under Rule 4(f)(3), but it scored points for trying the more traditional means of service first.