Tag Archives: Malta

Case of the Day: In re King.com

Candy Crush Saga logl

The case of the day is In re King.com Ltd. (N.D. Cal. 2016). King, a Maltese company, is the developer of the Candy Crush video game. It owned the European Candy Crush trademark and related marks. It sued Storm8 Studios LLC and TeamLava LLC in the Civil Court of Malta, alleging that their Candy Blast Mania game infringed the Candy Crush mark. The Maltese court stayed the action pending EU Intellectual Property Office review of a challenge to the validity of the marks. King brought an application under § 1782 seeking leave to depose Perry Tam, Chak Ming Li, and William Siu, Storm8 and TeamLava executives, for use in the Maltese action (after the stay is lifted). At the ex parte stage, King argued that the Maltese action would necessarily continue whatever the outcome of the validity proceedings, because several of the marks at issue in the infringement lawsuit were not at issue in the validity proceeding; that the validity proceedings might take a decade to complete; and that discovery now was important because Malta imposes no obligation to preserve evidence and “Respondents had a history of changing corporate forms.” The court granted the application.

After the court granted the application, the Maltese court entered an order requiring preservation of documentary evidence but denying King’s request for discovery. The respondents then moved to quash the US subpoena.
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Case of the Day: Kowalski v. Anova Food, LLC

The case of the day is Kowalski v. Anova Food, LLC (D. Hawaii 2012). Kowalski and Hawaii International Seafood, Inc. sued Cleasrsmoke Technologies, Ltd., a Malta corporation. The plaintiffs first attempted service by email to Clearsmoke’s lawyer on the mainland, and then by personal delivery to Clearsmoke’s Hawaii lawyer. But in either case did Kowalski seek leave of court before attempting the service. The court entered Clearsmoke’s default at Kowalski’s request, and Clearsmoke sought to vacate the default (the court later vacated the default). Kowalski then moved for leave to serve process on Clearsmoke’s Hawaii counsel under FRCP 4(f)(3).

The court correctly refused to retroactively “validate” Kowalski’s faulty attempts to serve process (I’ve written about this issue before). But the court also refused to allow Kowalski’s motion for leave to make alternative service, noting that Kowalski had not even attempted service in Malta, a party to the Hague Service Convention.

I think this decision was well within the judge’s discretion. The judge correctly pointed out that in other cases where courts had approved alternative service, there were barriers of one kind or another to attempting service via the Convention. But the decision should not be overread—there is no requirement of exhaustion of other options before a plaintiff can resort to alternative means of service.