The case of the day is H-D Michigan v. Hellenic Duty Free Shops (7th Cir. 2012). We first saw this trademark licensing dispute on September 27, 2011, when the question was whether the judge could extend a temporary restraining order past the ordinarily permitted time in order to allow the plaintiff, H-D Michigan LLC, a Harley Davidson entity, to effect service of process on the defendant, Hellenic Duty Free Shops S.A., in Greece—the judge did extend the TRO as Harley Davidson requested, and ultimately issued a preliminary injunction. We saw the case again on Feb. 20, 2012, when the question was whether Harley Davidson was entitled to an anti-suit injunction to enjoin related proceedings in Greece (again, the judge said yes).
Hellenic appealed both decisions, though I will focus here on the issues about service of process as they relate to the TRO rather than on the anti-suit injunction. Hellenic argued that the TRO was improper because it had not been served with process at the time of the entry of the TRO. The court rejected that argument, calling it “preposterous” and “refuted by the plain language of Rule 65, which permits the issuance of a preliminary injunction ‘only on notice,’ or the issuance of a temporary restraining order in some cases without ‘written or oral notice to the adverse party or its attorney.’” The court also raised a practical point: “[B]ecause formal service of process under the Hague Convention or other provisions of law can take months, acceptance of [Hellenic’s] argument would have the unfortunate effect of immunizing most foreign defendants from needed emergency injunctive relief.” I think that point has force, but it still seems to me, as I noted just recently in the discussion of the Fellowes case and in my comments to Peter Bert’s post, that there is a problem lurking here: assuming that the notice necessary to support a preliminary injunction is embodied in a judicial document, and assuming that the Hague Service Convention applies to transmission of all judicial documents, not just summonses, does a plaintiff risk violation of the Convention by providing notice outside the prescribed channels for service?