U.S. Magistrate Judge Jeffrey C. Manske agreed with California-based Avus Holdings LLC and Avus Design Inc. that the best way to serve Kyiv, Ukraine-based manufacturer Iron Lab with its lawsuit would be through email, a form of communication the parties have been using to discuss the court action, according to an order signed Monday.
"Wartime chaos indeed renders traditional methods of service impracticable and likely futile in this case," Judge Manske wrote.
Avus filed its lawsuit against Iron Lab in the Western District of Texas in early February, a few weeks before Russia invaded Ukraine on Feb. 24. At the end of March, Avus asked the court to grant it permission to serve Iron Lab via email, saying that although it had a physical address for the company, Avus doubted the address was still occupied at this point in time.
Avus also said it was concerned about endangering any process servers employed to attempt service in a war zone.
"Any such attempt of traditional service would inevitably prove futile and likely only serve to endanger process server(s) employed to carry out the attempted service," the company said in its motion. "Furthermore, even if logistically feasible to engage a process server in Ukraine, traditional means of service is not the most likely means by which to ensure defendant receives service, as the ongoing war in Ukraine has caused many residents to flee their known locations prior to February 24, 2022."
In its motion, Avus pointed to several courts that have previously allowed service through email, including the Ninth and Fifth Circuits.
Avus' lawsuit claims Iron Labs is infringing its weight plate collar product Lock-Jaw, which snaps around barbells to secure the weights in place. Iron Lab is selling a similar product and using the Lock-Jaw trademark in the product's descriptions to confuse customers, Avus alleges.
Both items are sold on Amazon and appear when Lock-Jaw is searched on the online marketplace, Avus claims.
Despite knowing about the infringement claims, Avus alleges, Iron Lab is continuing to sell the infringing products.
Avus has accused the Ukrainian company of infringing its patent, infringing its trademark and false designation of origin, according to court documents.
Counsel for Avus didn't immediately respond to requests for comment Thursday. Counsel information for Iron Labs wasn't immediately available.
The patent-in-suit is U.S. Patent No. 7,513,856.
Avus is represented by Benjamin T. Horton and Kelley S. Gordon of Marshall Gerstein & Borun LLP and Melissa Richards Smith of Gillam and Smith LLP.
Counsel information for Iron Lab wasn't immediately available Thursday.
The case is Avus Holdings LLC et al. v. Iron Lab, case number 6:22-cv-00134, in the U.S. District Court for the Western District of Texas.
--Editing by Alanna Weissman.
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