Case of the Day: WhosHere, Inc. v. Örün
Posted on March 7, 2014
The case of the day is WhosHere, Inc. v. Örün (E.D. Va. 2014), involves service by email and by Facebook and LinkedIn in Turkey.
WhosHere, Inc., which owns the “WhosHere” registered trademark, offers a “social proximinty networking application,” sued Gokhan Örün for trademark infringement, unfair competition, and cybersquatting. The claim was that Örün did business as “WhoNear” and “whonearme” and that he offered an application using the whonear.me domain name. WhosHere attempted to serve process on Örün in Turkey via the central authority mechanism under the Hague Service Convention, but the Turkish central authority was unable to make service because he could not be found at the address WhosHere had provided, which was taken from the allegedly infringing website.1 WhosHere then sought leave under FRCP 4(f)(3) to serve process via email and through Facebook and LinkedIn.
The judge granted the motion. The decision is correct, but it is worth pointing out—again—that the reason a decision like this is correct is that under Article 1, the Convention simply does not apply where the defendant’s address is unknown. If the Convention did apply, then the decision would have been wrong, since service by email and similar electronic means is permissible under the Convention, if at all, only under Article 10(a), which permits service by postal channels in the absence of an objection by the state of destination, and since Turkey has objected to service under Article 10(a). (I assume that Turkey has no law specially permitting service by email sufficient to bring Article 19 into play). Thus the judge’s citations to cases such as Gurung v. Malhorta and FTC v. PCCare247, Inc. really misses the mark.
- Somewhat oddly, the Turkish central authority returned its certificate to the United States Office of Foreign Litigation, which is an office within the Department of Justice that, as far as I can tell, should have no role or involvement in service abroad in a private civil litigation not involving the United States itself. Article 6 of the Convention requires the central authority to forward its certificate directly to the applicant, which in this case was WhosHere’s counsel.