KAWS Inc. v. Individuals

Background

On November 4, 2022, the court entered an order concerning KAWS Inc.'s request for a temporary restraining order and preliminary injunction. That earlier order granted part of KAWS's request for temporary restraints but denied KAWS's request to serve defendants by email and online publication because of the Hague Convention, an international agreement governing service of court papers across borders. The court said it would reconsider electronic or online service if KAWS showed that the convention did not apply because it could not identify physical addresses for particular defendants despite reasonable efforts.

KAWS then submitted an amended Schedule A and declarations describing its efforts. KAWS represented that Alibaba, AliExpress, DHgate, and Etsy had not provided physical addresses for 69 defendants, despite the court's order. KAWS also represented that 49 defendants using Amazon, eBay, Walmart, and Wish could not be reached at the addresses supplied by those platforms; many addresses were inaccurate or fake. For six of those defendants, the addresses were too remote to visit, access was restricted because of COVID-19 precautions, no one answered the door, or postal delivery had not been completed when local counsel prepared its declaration.

Court’s Analysis and Order

The court found that KAWS had made a sufficient showing to serve the defendants listed on the First Amended Schedule A by the electronic methods requested, except for the four defendants listed on pages 28 and 29 of the Hong Hu Declaration. For the 69 defendants whose physical addresses were not provided, the court concluded that there was no other way to obtain those addresses and that alternative service by email or online publication was appropriate. For the defendants described in paragraph 12 of the declaration, the court found electronic service permissible because further mail delays were uncertain and KAWS might not be able to confirm the addresses within a reasonable time.

The court treated southythoughcyy, liukang2734, Subaphoiner, and Lovelybaek differently because postal delivery had succeeded. For liukang2734 and Subaphoiner, mail workers had directly contacted the defendant merchants. The court held that, because KAWS had identified the defendants' physical locations, the Hague Convention applied and service had to comply with methods permitted under that convention. The court stated that public-announcement service could be used for southythoughcyy and liukang2734 if KAWS showed that Chinese law permits that method for people domiciled in China. Because KAWS had direct confirmation that it was likely to serve Subaphoiner and Lovelybaek through ordinary methods, the court ordered KAWS to use those methods for them first. The court would permit alternative service under Chinese law for those two only if ordinary service failed.

The court also accepted KAWS's representation that two defendants were domiciled in Algeria and that Algeria was not a Hague Convention signatory. It therefore permitted electronic service for those defendants. The court directed KAWS to serve all defendants without delay using the methods specified in the order. This order addressed service of process and did not decide the underlying merits of KAWS's claims or the pending preliminary-injunction request.