The case of the day is Spin Master Ltd. v. Aganv (S.D.N.Y. 2024). It’s one of these “schedule A” cases brought against a bevy of accused IP infringers abroad. In this case, the claim is for infringement of trademarks related to the Rubik’s Cube, and the plaintiff asserted that the defendants were in China. The plaintiff sought a temporary restraining order and sought permission to serve process by email.

Regular readers know that service of process by email in China is not permissible when the address of the Chinese defendant is known. This is because service by email is permissible under the Service Convention, if at all, only because email is treated as part of the postal channel under Article 10(a); but China has objected to service by postal channels, as the Convention allows it to do.

Neither the plaintiff nor the court took this indisputably correct argument head-on. Instead, the court found that service by email was proper because the third paragraph of Article 15 of the Service Convention provides:

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

That can’t possibly be right, for two reasons. First, the reference to “preceding paragraphs” means the preceding paragraphs of Article 15, not all the preceding paragraphs of the Convention including Article 10. It makes no sense to think that a provision in the third paragraph in the article on default judgments is a catch-all that overrides every other provision of the Convention, including its exclusive methods of service, “in case of urgency.” Second, service of process is not a “provisional or protective measure.” What Article 15 obviously means is that while a court cannot enter a default judgment until the provisions of Article 15 have been satisfied, it can enter preliminary injunctions, etc.

The case illustrates one of the real problems with “Schedule A” cases. The plaintiff makes assertions about what the law is that go unchallenged, and the court adopts them, too often as a matter of course. Then we see the same mistakes cited as precedents in later cases. This particular mistake should not be allowed to take root.

Image credit: Booyabazooka (CC BY-SA)