Ride the Lightning
Cybersecurity and Future of Law Practice Blog
by Sharon D. Nelson Esq., President of Sensei Enterprises, Inc.
Virginia Federal Court Approves Service by Facebook, LinkedIn and E-mail
March 20, 2014
Virginia Lawyers Weekly (subscription required) recently reported that an Alexandria U.S. District Court has approved service of a trademark infringement suit via Facebook, LinkedIn and e-mail, in a February 20th decision in WhosHere Inc. v. Orun. In 2008, plaintiff Whoshere Inc. launched an app that “lets you meet and chat with people nearby.”
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 e-mail 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. The plaintiff said he has not responded to the suit or to any further communications.
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.
Finally, Whoshere went to court asking permission to use alternate contact points for the defendant.
Courts have been flexible in applying Rule 4(f)(3) to allow service by e-mail and social networking sites, according to U.S. Magistrate Judge Thomas Rawles Jones Jr. who cited decisions from federal courts in New York, Georgia and Florida.
Turkey has not specifically objected to service by e-mail 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 e-mail addresses, and had provided the plaintiff with the additional e-mail address. His Facebook and LinkedIn accounts under his name also contained information about his involvement with the WhoNear app.
Jones 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 commended it for trying the more traditional means of service first.
A good, well-reasoned opinion – and Virginia joins the growing ranks of jurisdictions permitting service under similar circumstances via e-mail and social media.
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