United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION FOR APPROVAL OF COURT-ORDERED
LAB SON FREEMAN, United States District Judge
Juicero Inc. (“Juicero”) brings this action
against Defendants for allegedly copying its patented juicing
method and system, as well as its trademark and trade dress.
See e.g., Compl. ¶¶ 3-4, 61, ECF 1.
Juicero has served one but not the remaining two China-based
defendants. Before the Court is Juicero's motion to serve
the China-based defendants, iTaste Co., Ltd.
(“iTaste”) and Xiuxing “Leo” Chen
(“Chen”) (collectively, “Defendants”)
via alternative means at email addresses, U.S.-based counsel,
and Facebook. Mot., ECF 34. The time for opposition has
lapsed and no opposition has been filed. Pursuant to Civ.
L.R. 7-1(b), the Court finds this motion suitable for
submission without oral argument and hereby VACATES the
hearing scheduled for October 12, 2017. For reasons stated
below, the Court GRANTS Juicero's motion.
to Juicero's amended complaint, and the exhibits and the
declaration attached to Juicero's motion, Defendants
advertise and sell a product called “Juisir” that
mimics Juicero's patented design. Mot. 2. In promoting
Juisir, Defendants are active on websites, Facebook, YouTube,
Twitter, and Instagram. Id. at 3. For example,
Defendants update their Facebook and Twitter pages everyday
with new posts, Exs. 4, 6 to Milowic Decl., and post new
YouTube videos about every week. Ex. 5 to Milowic Decl. It
has also been observed that Defendants respond to comments on
a daily basis under the name Juisir on their YouTube channel
and respond to customers' comments posted on their
website, Jusir.com. Exs. 8-9 to Milowic Decl. The website
also provides an email address for customer questions
(email@example.com). Ex. 1 to Milowic Decl.
January 11, 2017, counsel for Juicero sent a letter to
iTaste's trademark counsel at their email address and
physical mailing address, addresses provided by Defendants to
the U.S. Trademark Office in their trademark application for
“Juisir.” Exs. 10, 13 to Milowic Decl. The letter
informed Defendants of their alleged infringement of
Juicero's property rights. Mot. 3-4. On January 25, 2017,
Mr. Richard Lehv of the law firm Fross, Zelnick, Lehrman
& Zissu, P.C. (“Fross Zelnick”) responded to
Juicero's letter. Ex. 11 to Milowic Decl. The response
stated that Fross Zelnick represents iTaste and that iTaste
contests the allegations stated in Juicero's letter.
Id. The response further stated that while
iTaste's website had been revised, iTaste refused to take
further steps demanded in Juicero's letter. Id.
Juicero filed the instant action, Juicero asked iTaste's
attorney whether he would accept service on behalf iTaste and
Chen, to which he responded that he was “not authorized
to accept service” and that Fross Zelnick does not
represent any defendants in connection with the instant suit.
Ex. 12 to Milowic Decl. Juicero also mailed the amended
pleadings via FedEx to iTaste's address in China and
received confirmation that they were delivered on May 2,
2017. Milowic Decl. ¶ 18. Juicero represents that it has
been working with an international process server to effect
service under the Hague Convention but understands that the
process could take over a year. Id. ¶ 19; Ex.
15 to Milowic Decl.
Rule of Civil Procedure 4(f) provides the applicable
authority for serving an individual in a foreign country:
Unless federal law provides otherwise, an individual-other
than a minor, an incompetent person, or a person whose waiver
has been filed-may be served at a place not within any
judicial district of the United States: (1) by any
internationally agreed means of service that is reasonably
calculated to give notice, such as those authorized by the
Hague Convention on the Service Abroad of Judicial and
(2) if there is no internationally agreed means, or if an
international agreement allows but does not specify other
means, by a method that is reasonably calculated to give
(A) as prescribed by the foreign country's law for
service in that country in an action in its courts of general
(B) as the foreign authority directs in response to a letter
rogatory or letter of request; or
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint to
the individual personally; or (ii) using any form of mail
that the clerk addresses and sends to the individual ...