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Juicero, Inc. v. Itaste Co.

United States District Court, N.D. California, San Jose Division

June 5, 2017

JUICERO, INC., Plaintiff,
v.
ITASTE CO., et al., Defendants.

          ORDER GRANTING MOTION FOR APPROVAL OF COURT-ORDERED SERVICE

          BETH LAB SON FREEMAN, United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         According 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 (contact@juisir.com). Ex. 1 to Milowic Decl.

         On 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.

         After 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.

         II. LEGAL STANDARD

         Federal 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 Extrajudicial Documents;
(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 notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
(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 ...

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