Abercrombie & Fitch Trading Co. v. Quester Enterprises, Inc.

Background

Abercrombie & Fitch Trading Co. filed this trademark-infringement action concerning its fragrance trademarks and later filed a first amended complaint. Abercrombie sought permission to serve Diamond Ocean Limited by email. Abercrombie represented that Diamond Ocean Limited was a resident of Hong Kong, that regular service would take four to six months and cost approximately $797 in fees, and that service through regular channels would cause undue delay and burden.

Legal standard

Federal Rule of Civil Procedure 4(h)(2) permits service on a corporation outside the United States by methods authorized for serving an individual in a foreign country under Rule 4(f). Rule 4(f)(3) allows a court to order another method of service if that method is not prohibited by an international agreement. Alternative service must also satisfy due process, meaning it must be reasonably calculated to inform the defendant about the case and give it an opportunity to respond.

Court’s analysis

The court considered the Hague Convention on service abroad. Hong Kong is a signatory through China, but the court found that Hong Kong had not objected to service through postal channels. Relying on the reasoning that an objection to postal service can encompass email service, the court concluded that email service was not prohibited by the Hague Convention. The court also found that the proposed email address was used by Diamond Ocean Limited to conduct business, making it reasonably likely that an email sent there would reach the defendant. The court therefore found that email service satisfied the applicable due-process requirement.

Disposition

The court GRANTED Abercrombie’s request for alternative service via email. The order did not decide the merits of the trademark-infringement claims.