The case of the day is Whoop, Inc. v. Shenzhen Wonlex Technology Co. (D. Mass. 2026). As you might guess from the case name, it’s an IP infringement case involving a Chinese defendant. Whoop sought a preliminary injunction. It made an emergency motion for leave to serve the Chinese defendant with process by email before the hearing on the motion for a preliminary injunction.

The longtime Letters Blogatory view, now blessed by the federal appellate courts that have considered the question, is that you cannot serve process by email on a defendant in China whose address is known. The reason is that under the Service Convention, email service is permissible, if at all, only because it qualifies as service by postal channels.¹ The Convention permits service by postal channels and certain other alternative methods, but only if the state of destination has not objected. But China has objected to all alternative methods of service. QED.

The judge, without much discussion, agreed with the orthodox view. But Whoop pointed to Article 15 of the Convention, which provides:

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

Okay, but what are the preceding paragraphs? They explain when a court can enter a judgment in cases where “a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared,” or in other words, when a court can enter a default judgment in cases where the Convention applies.

Whoop argued that service of process by email is a “provisional or protective measure” that the court can authorize “in case of urgency.” There are courts that have taken that view. But the judge in today’s case (Judge Saylor, here in Massachusetts) disagreed, holding, correctly in my view, that Article 15 simply means that a court can order measures such as preliminary injunctions or temporary restraining orders, even if the court could not yet enter a default judgment. The purpose of the sentence Whoop relied on is simply to make it clear that there has to be a way for courts to act on applications for emergency relief even if they cannot enter a final judgment unless and until service of process has been effected.

But that doesn’t mean Whoop was barred from seeking a preliminary injunction. It’s true that under the law of the forum, namely FRCP 65(a)(1), a preliminary injunction may issue only “on notice to the adverse party.” There is also, of course, a due process issue here. But notice is not service.

Think twice before wading into this semantic morass. The Convention refers in English to “service,” but in French it refers to “signification” and to “notification.” I am not a civil law expert, but at a high level, signification is the more formal method of notification, executed by a judicial officer, and roughly equivalent to service of process, while notification is a broader term that reaches less formal methods of notifying a party of something.

The judge’s view was that because giving notice of a motion for a preliminary injunction does not require service of process, and because email is adequate notice both under FRCP 65 and under the Due Process Clause, providing notice by email does not violate the Convention. As a practical matter, he has to be right. Otherwise it is hard to see how a US court could issue preliminary injunctions in cases where the defendant is in a state that has objected to service by alternate methods. But I am not so sure that getting to that conclusion is a simple matter under the Convention.

Here is how Article 1 of the Convention, in English, defines the Convention’s scope:

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

And here it is in French:

La présente Convention est applicable, en matière civile ou commerciale, dans tous les cas où un acte judiciaire ou extrajudiciaire doit être transmis à l’étranger pour y être signifié ou notifié.

The problem is that “service,” in English, should have the same meaning as “signification ou notification” in French. That is, it should not be limited to formal service of process. I have also written previously about the Convention’s reference to transmission of any “judicial or extrajudicial document” rather than simply to summonses in order to demonstrate that the Convention can’t easily be limited to service of process in the strict sense, as we conceive of it in American law.

I don’t think there can be any real argument that a motion for a preliminary injunction, with the accompanying papers, is a “judicial document,” and that, at the beginning of a case, where a defendant abroad is not (yet) represented by US counsel, there is occasion to transmit the motion to the defendant abroad. So what is a court to do? One possibility is to look to Schlunk v. Volkswagen, 486 U.S. 694 (1988), which suggest that the Convention really is limited in its scope to service of process, though that solution is not persuasive for the reasons I’ve just given. Of course I acknowledge the discussion of the drafting history in Schlunk, but I have to say that it seems to me that the court’s view begs the question, because it seems to say that the use of the word service, or signification or notifcation, rather than delivery (remise), shows that the Convention means to refer to service of process. But the whole point is that signification and notification together apply to many more kinds of documents than just the kinds used to bring a defendant before the court. And that’s true if we consider the English word service without worrying about French. FRCP 4 governs service of the summons and complaint and explains the methods that can be used. FRCP 5 governs service of all other documents in a lawsuit and explains the methods that can be used. So even in a purely American context, focusing on the use of the word “service” doesn’t make the case.

A better view, maybe, is to look at the “notwithstanding” language from Article 15, but in a different light than Whoop or the court considered it. The question shouldn’t be whether service of documents by email is a “provisional or protective measure,” but rather, whether a court’s power to grant provisional or protective measures necessarily implies the power to do the things that are necessary conditions precedent to granting those measures, for example, giving notice of the proceedings to the adverse party via a method that would not ordinarily be permissible under the Convention. I’m not sure that’s perfect, but it seems the most defensible way to get to the necessary conclusion: that even if the plaintiff will ultimately have to serve the defendant via the Chinese central authority, in case of urgency, it can get a preliminary injunction after giving notice in a less formal way.

1. If service by email is not service via the postal channel, then China’s objection isn’t relevant, and the key point becomes the lack of any provision in the Convention that can fairly be read to authorize or permit service by email. ↩︎