The Software IP Report

Service by E-mail

By Charles Bieneman

Categories: Patent Civil Procedure, The Software IP Report

Internet scofflaws often operate anonymously or under pseudonyms, and frequently provide false addresses, making them difficult to locate and serve.  This has led some courts to allow service via e-mail, a helpful tool to remember in the often frustrating battle against the anonymity of cyber squatters, domain name infringers, and the like.

For example, in Kohler v. DomainJet, 2012 U.S. Dist. LEXIS 28888, No. 11-cv-1767 (S.D. Cal. March 5, 2012), the plaintiffs filed a complaint alleging claims under the Anticybersquatting Consumer Protection Act and the Lanham Act against a defendant corporation, an individual defendant, and Does 1-10.  Plaintiffs’ private investigator established that addresses in the United States and China associated with the defendants were nonexistent or invalid.  However, Plaintiffs had communicated with one of the defendants using an e-mail address that was also used to register domain names that were the subject of the complaint.

Under Federal Rule of Civil Procedure 4(e)(1), the court was to look to California law to determine permitted manners of service.  Under California law (like the law of many other states), service could be made by publication or “in a manner which is reasonably calculated to give actual notice to the party to be served.”  Based on Plaintiffs’ e-mail communications with the individual defendants, and the fact that the defendant should have had an expectation of receiving communications at an e-mail address used to register a domain name, the court granted Plaintiffs’ motion for leave to serve Defendants by e-mail.