Tile, which sells Bluetooth devices that can be attached to phones, car keys and the like and can be used to find the item to which it has been attached, sued S&W Dealz and Trend Goods, accusing them of infringing its federally-registered “TILE” trademark through their sale of Tile products through on-line commerce sites including Amazon.com. Tile sells its products through authorized resellers, who are limited in the locations and websites that they can offer the products. Authorized resellers are also prohibited from selling or otherwise diverting Tile products to any other party for subsequent resale. While the defendants sell Tile products (apparently liquidated or used), their sale outside of the authorized network are non-genuine in that they are not new (despite being so listed) and do not come with Tile’s warranty. Tile asserted trademark infringement unfair competition and false advertising under the Lanham Act, as well as state law unfair competition.
Tile’s complaint acknowledged that Tile did not know the name and address of either defendant, but did know the Amazon seller identification number for each. Accordingly, the same day that Tile filed the complaint, it filed a motion for alternative service of process, seeking leave to serve them through Amazon’s electronic mail service that the defendants use to communicate with customers. Under Massachusetts state law, which the Federal Rules refer to as an allowable means of service, service by alternative means can be used when a plaintiff cannot find the defendant, the last and usual abode of the defendant, or an agent on whom service can be made. So long as the alternative means of service is reasonably calculated, under the circumstances, to give notice of the pendency of the action and afford them an opportunity to respond, due process is met. Judge Burroughs, who is assigned to the case, agreed and granted the motion for alternative service.
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