Case of the Day: BBK Tobacco & Foods v. Juicy eJuice

The case of the day is BBK Tobacco & Foods LLP v. Juicy eJuice (D. Ariz. 2014). The plaintiff, which sold the liquid used to create vapor in electronic cigarettes, owned registered trademarks including JUICY JAYS and JUICY DROPS. It sued 1673030 Alberta, Inc., which, it alleged, sold electronic “smoking devices” and the liquids under the mark JUICY ESTICK, for trademark infringement.

BBK served process by delivery via an Alberta process server at the defendant’s registered office. It was undisputed that the service complied with Alberta rules on service of process. Nevertheless, the defendant moved to dismiss for insufficient service of process.

The defendant looked to the language of Alberta’s answers to Hague Conference questionnaires, which indicated that the “normal procedure” was for documents to be served by a sheriff. But Alberta’s answer was concerned with methods of service under Article 5, i.e., with what the Central Authority would do upon receipt of a request for service. The answer had nothing to do with the permissibility of methods of service under Article 10. The defendant also misquoted Canada’s declaration. The declaration reads: “On accession, Canada has not declared to object to methods of service of Article 10, sub-paragraphs b) and c),” not, as the defendant misquoted it, “On occasion, Canada has not declared to object to methods of service of Article 10, sub-paragraphs b) and c).” Oops!

The judge denied the motion to dismiss. But while I think that the quality of lawyering on the defendants’ part was not too hot, I think that the defendant, with better lawyers, perhaps should have won. Why?

The argument is the same as the argument I noted in my posts on Barriere v. Cap Juluca and Moskovitz v. La Suisse. Article 10(c) provides: “Provided the State of destination does not object, the present Convention shall not interfere with … the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.” This is best read not as an affirmative authorization but as mere permission as long as the law of the forum authorizes service via “competent persons of the State of destination.” So to make use of Article 10(c), we need to find an affirmative source of authority in the FRCP. Rule 4(f)(2)(A) provides for service “as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction,” but only if “there is no internationally agreed means, or if an international agreement allows but does not specify other means.” Isn’t it clear that the Service Convention provides “internationally agreed means” for service, and that, unlike the non-exclusive Inter-American Convention, it doesn’t “allow but [fail to] specify other means”? If this is right, then it seems there’s a pretty good argument that FRCP 4(f)(2)(A) itself does not authorize service via a foreign competent person under Article 10(c). FRCP 4(f)(2)(C)(i), which provides for service by “delivering a copy of the summons and of the complaint to the individual personally,” would do the trick, except that under FRCP 4(h)(2), it’s expressly inapplicable to service abroad on a corporation.

So in short, with better lawyering, I think the defense would have had good service of process arguments to make!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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