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The Noco Co. v. Khaustov

United States District Court, N.D. Ohio, Eastern Division

September 5, 2019

THE NOCO CO., Plaintiff
v.
YAN KHAUSTOV D/B/A KHAUSTOV-AMZ, Defendant

          ORDER

          SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE

         Currently pending before the court is Plaintiff The NOCO Company's (“Plaintiff” or “NOCO”) Motion for Leave to Serve Defendant, Yan Khaustov, d/b/a khaustov-amz (“Defendant”), by Alternative Means. (ECF No. 8.) More specifically, Plaintiff requests that the court grant leave to serve Defendant via E-mail. (Pl. Mot. at PageID #40, ECF No. 8.) For the following reasons, the court grants Plaintiff's Motion.

         I. BACKGROUND

         NOCO is a company that designs, manufactures, and sells battery chargers, portable power devices, and related battery products and accessories (collectively, the “Products”). (Compl. ¶ 2.) Plaintiff alleges that Defendant “is engaged in the unauthorized sale of products distributed by, and infringing upon the intellectual property of, Plaintiff.” (Id. ¶ 1.)

         Plaintiff sells the Products on its website to wholesalers and authorized resellers (“Resellers”) who have entered into contracts (“Reseller Agreements”) with Plaintiff. (Id. ¶¶ 7, 8.) Plaintiff contends that it “uses Reseller Agreements in order to promote fair competition between Resellers and to protect its brand, its goodwill, and its valuable intellectual property, including its proprietary images, designs, and content (“Copyrights”) and the registered trademarks, including the trademarks NOCO ® and NOCO GENIUS ® (“Trademarks”).” (Id. ¶ 10.)

         On about November 20, 2018, Plaintiff became aware that Defendant was “selling the Products and using Plaintiff's Copyrights and Trademarks without authorization and without Plaintiff's consent.” (Id. ¶ 14.) Plaintiff alleges that Defendant was selling the Products online on www.amazon.com and using the Amazon Storefront khaustov-amz. (Id. ¶ 15.) On January 2, 2019, Plaintiff, through counsel, sent a letter informing Defendant that it was selling the Products without authorization, that such sales violated Plaintiff's rights in the Copyrights and Trademarks, and requested that Defendant cease the conduct immediately. (Id. ¶¶ 20-21.) Defendant did not comply with Plaintiff's request. (Id. ¶ 22.) Thereafter, on January 25, 2019, Plaintiff instituted this action by filing its Complaint. (ECF No. 1.)

         Since the Complaint was filed, every effort that Plaintiff has taken to locate and serve Defendant has failed. (Def.'s Mot. at PageID #44, 45, ECF No. 8.) Plaintiff attempted to serve Defendant by registered mail and requested that Defendant waive service. (Id.) Delivery of service by registered mail failed because the package was unclaimed at Defendant's Russian Address, which Plaintiff obtained through a subpoena to Amazon. (Id. at PageID #43-44.) Plaintiff, thereafter, made several attempts to identify Defendant's current physical address using LexisNexis and TransUnion commercial databases, USPTO databases, the CopyRight Office's Public Catalog, Facebook, Twitter, Instagram, LinkedIn, OpenCorporates, and Google. (Id. at PageID #44.)

         The results of Plaintiff's subpoena to Amazon have provided Plaintiff with an email.ru account which is the primary means by which Defendant conducts its online business on Amazon Storefront. (Id. at PageID #47.) Further, Plaintiff asserts that emails sent to the Defendant's email.ru account have neither been marked as undeliverable nor rejected in anyway. (Id.) On July 9, 2019, Plaintiff filed the present Motion seeking to serve Defendant through this email account pursuant to Federal Rule of Civil Procedure 4.

         II. LAW AND ANALYSIS

         The court looks to Federal Rule of Civil Procedure 4(f) in deciding Plaintiff's request to serve Defendant via email. In relevant part, the Rule states:

Unless federal law provides otherwise, an individual . . . 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 ...

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