Service of Process Can Frustrate IP Rights

Service of process is the fairly mundane procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party (such as a defendant) in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.  Notice is typically furnished by delivering a set of court documents (called "process") to the person to be served.

Within the United States, this is usually a fairly simple matter that involves having a licensed process server (or in some cases, a U.S. Marshal or Sheriff) deliver a hard copy of the Summons or other legal document to the Defendant or to a corporate representative, in the case of a corporation.  For some corporations, it may be sufficient to serve the Secretary of State where the company is incorporated.

In those cases where a party to be served is difficult to locate, the court may permit substitute service through publication in a local newspaper.

For the vast majority of cases, process can be routinely served in one or more of these manners, and a defendant would have a tough time arguing that he was not properly served, if he chooses to default and claim that he didn't know about the case.

But for brand owners whose infringers often reside well outside the United States, service of process can become a rather tricky prospect -- one that may even frustrate all relief entirely.

International service of foreign judicial and extrajudicial documents is governed in general by the 1965 Hague Service Convention.

Prior to the enactment of the Hague Service Convention, service of process in civil cases was generally effected by a letter rogatory, a formal request from the court in the country where proceedings were initiated or underway to a court in another country where the defendant resided. 

This procedure generally required the use of consular and diplomatic channels as the request had to be made to the foreign minister (Secretary of State in the United States) of the defendant's country by the foreign minister of the originating court.

Since 1965, member states designate a central authority for service of process and requests go directly there. 

In addition, some governments allow some type of service directly by mail or personal service by a person otherwise authorized to service process without involvement of local courts.

By way of example, the United Kingdom and Hong Kong permit a person or corporate entity to be served through simple International Registered Mail. The People's Republic of China, however, formally objected to this process and insists that any form of such service is not only ineffective, it is illegal.

Therefore, the process of service of process on a Chinese national can take months or sometimes years, and cost tens of thousands of dollars. In some cases, the documents must be translated into a foreign language such as Cantonese or Mandarin.

And, to make matters even more challenging, assuming that the Chinese national or entity does not participate in the foreign proceeding, there is no guarantee that the Chinese government will enforce a foreign default judgment against his assets located there.

The end result is that that the People's Rebublic of China has effectively insulated approximately 1/5 of the world's population from simple service of legal process from abroad.