The case of the day is NOCO Co. v. Khaustov (N.D. Ohio 2019). NOCO accused Yan Khaustov of trademark infringement because he was selling alleged knockoffs via Amazon. The question was whether the court should authorize NOCO to serve process on Khaustov, in Russia, via email.

The judge recognized that the Hague Service Convention was applicable. He incorrectly reasoned that Russia’s objection to service by postal channels under Article 10(a) did not apply to service by email. As I have written often before, if an objection to service by postal channels does not cover service by email, it must be because service by email is not service by postal channels. But if service by email is not service by postal channels, then you can’t look to Article 10 as the source of permission to serve process by email when the Service Convention applies. We know that the Convention is exclusive, that is, when it applies, you must use one of the methods it authorizes or at least permits. But the only provision in the Convention that even arguably does this is … Article 10(a)! So the court’s mistake, which other courts have made, is to read Article 10 paradoxically. An objection to service under Article 10(a) doesn’t reach email, but Article 10(a) permits service by email.

Having made the error, the judge could have called it a day. But he went on to explain, this time correctly, that Russia has unilaterally suspended cooperation with the US under the Convention. If the Convention permits service by email, then this doesn’t really matter, because there is no requirement that you try other methods of service before asking the court to authorize alternate methods of service under FRCP 4(f)(3). Nevertheless, the judge went on to say that because of Russia’s position, there is no “internationally agreed means” of service under FRCP 4(f)(1). This is interesting and may or may not be correct, but it doesn’t do any work. The key question isn’t whether there are “internationally agreed means” of service, but rather whether the treaty is in force between the US and Russia. I’ve previously given reasons for thinking that the treaty is still in effect notwithstanding Russia’s misdeeds, at least unless the United States takes action to suspend the operation of the treaty, which it has not done.