Citation Edit

Columbia Ins. Co. v., 185 F.R.D. 573 (N.D. Cal. 1999) (full-text).

Factual Background Edit

Plaintiff, assignee of trademarks related to See's Candy Shops, sued defendants for trademark infringement, dilution, and unfair competition, for registering the domain names "" and "" for websites using See's trademarks and logos.

Trial Court Proceedings Edit

Plaintiff was unable to serve the complaint on defendants, who had apparently used a variety of fake names and addresses when registering the domain names with NSI. The court thus refused to grant a temporary restraining order because it would be ineffectual against the unlocated defendants. Although courts rarely permit discovery before service, the court ordered plaintiff to submit a brief in support of the court's permission of limited discovery to learn facts necessary to permit service on defendants.

Preservice discovery was justified here because: (1) plaintiff identified the missing parties with sufficient specificity to establish that defendants were real persons or entities that could be sued in federal court; (2) plaintiff also sufficiently identified efforts undertaken to locate the defendants, including sending all pleadings via e-mail to the addresses listed with NSI; and (3) plaintiff established that its infringement claim could survive a motion to dismiss (i.e., not filed merely to harass or intimidate), especially given that the defendants forwarded thirty-one e-mails from consumers who were actually confused when they sought to purchase plaintiff's products from defendants' websites.

Source Edit

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