IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

HANGZHOU CHIC INTELLIGENT 

TECHNOLOGY CO. and UNICORN 

GLOBAL, INC.,

Plaintiffs,

v.

THE PARTNERSHIPS AND 

UNINCORPORATED ASSOCIATIONS 

IDENTIFIED ON SCHEDULE A,

Defendants.

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Case No. 20-cv-4806

Judge Thomas M. Durkin

Magistrate Judge Jeffrey Cole

MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS GYROOR US, 

TOMOLOO DX, TOMOLOO TC, AND TOMOLOO FLAGSHIP’S MOTION TO 

DISMISS THE THIRD AMENDED COMPLAINT WITH PREJUDICE

LOEB & LOEB LLP

Adam Kelly

Doug Masters

Arthur Yuan

Neil Nandi

321 North Clark Street

Chicago, IL 60654

(312) 464-3100 

Christopher G. Binns 

(admitted pro hac vice)

LOEB & LOEB LLP

345 Park Avenue

New York, NY 10154

(212) 407-4000

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT.................................................................................................................................. 3

I. THE COURT PROPERLY EXERCISED ITS DISCRETION IN ORDERING 

ELECTRONIC SERVICE AND PLAINTIFFS COMPLIED WITH THAT 

ORDER............................................................................................................................... 3

A. Electronic Service Is Permitted Under Rule 4 .........................................................3

B. Moving Defendants Failed To Establish That Electronic Service is 

Improper in This Case..............................................................................................5

1. Attempting Service Under the Hague Convention is Not Mandatory 

Under These Circumstances ........................................................................5

2. Electronic Service was Proper, Even If Defendants’ Physical 

Addresses Were Purportedly Available .......................................................6

3. Even If the Hague Convention Applies, The Purported Available 

Addresses for Moving Defendants Were Unreliable ...................................8

4. The Hague Convention Does Not Prohibit Electronic Service....................9

5. Electronic Service Satisfies Due Process Requirements ...........................11

C. Alternatively, Plaintiffs Should Be Permitted to Serve Moving Defendants 

by Serving Their U.S. Counsel ..............................................................................12

CONCLUSION............................................................................................................................. 13

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TABLE OF AUTHORITIES

Page(s)

Cases

Advanced Access Content System Licensing Administrator, LLC v. Shen,

2018 U.S. Dist. LEXIS 169603 (S.D.N.Y. Sep. 30, 2018)........................................................8

Agha v. Jacobs,

2008 U.S. Dist. LEXIS 109326 (N.D. Cal. May 13, 2008).....................................................10

Brown v. China Integrated Energy, Inc.,

285 F.R.D. 560 (C.D. Cal. 2012).............................................................................................12

CFTC v. Caniff,

2020 U.S. Dist. LEXIS 33416 (N.D. Ill. Feb. 27, 2020) ...........................................................5

Compass Bank v. Katz,

287 F.R.D. 392 (S.D. Tex. 2012).............................................................................................10

Elobied v. Baylock,

299 F.R.D. 105 (E.D. Pa. 2014)...............................................................................................10

Gianni Versace, S.P.A. v. Yong Peng, et al.,

No. 18-cv-5385 (N.D. Ill. Feb. 27, 2019) ..............................................................................4, 5

Huawei Techs. USA, Inc. v. Oliveira,

No. 4:19-cv-229-ALMKPJ, 2019 U.S. Dist. LEXIS 120533, 2019 WL 3253674 (E.D. Tex. 

July 19, 2019)...........................................................................................................................12

Keck v. Alibaba.com, Inc.,

2018 U.S. Dist. LEXIS 128396, 2018 WL 3632160 (N.D. Cal. July 31, 2018)........................9

Luxottica Group S.p.A. v. Partnerships, et al.,

391 F. Supp. 3d 816 (N.D. Ill. 2019)...................................................................................7, 10

Maclean-Fogg Co. v. Ningbo Fastlink Equip. Co.,

2008 U.S. Dist. LEXIS 97241 (N.D. Ill. Dec. 1, 2008)...........................................................10

Monco v. Zoltek Corp.,

2018 U.S. Dist. LEXIS 111967 (N.D. Ill. Apr. 24, 2018) .........................................................5

Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306 (1950)...................................................................................................................3

Nanya Tech. Corp. v. Fujitsu, Ltd.,

2007 U.S. Dist. LEXIS 5754 (D. Guam Jan. 25, 2007)...........................................................10

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Nat’l Ass’n of Home Builders v. Defendants of Wildlife,

551 U.S. 644 (2007)...................................................................................................................9

Nuance Communs. Inc. v. Abbyy Software House,

626 F.3d 1222 (Fed. Cir. 2010)..............................................................................................4, 5

Rio Props., Inc. v. Rio Intern. Interlink,

284 F.3d 1007 (9th Cir. 2002) .......................................................................................3, 4, 5, 6

Spin Master Ltd., et al. v. California Pineapple Toy Store, et al.,

No. 20-cv-00628 (N.D. Ill. Mar. 5, 2020)..................................................................................7

Strabala v. Zhang,

318 F.R.D. 81 (N.D. Ill. 2016) (Durkin, J) ...................................................................... passim

Sulzer Mixpac AG v. Medenstar Indus. Co.,

312 F.R.D.............................................................................................................................9, 11

Unicorn Global, Inc. et al. v. E-link Technology Co., Ltd. et al.,

No. 20-cv-4127 (JJT) (N.D. Ill.)..............................................................................................11

Victaulic Co. v. Allied Rubber & Gasket Co.,

2020 U.S. Dist. LEXIS 82150 (S.D. Cal. May 8, 2020)........................................................6, 9

Volkswagen Group of America, Inc. v. 5starautoparts2015, et al.,

No. 19-cv-7978 (N.D. Ill. March 31, 2020)...............................................................................5

Volkswagen Group of America, Inc. v. Brandcar Store, et al.,

No. 20-cv-3131 (N.D. Ill Sept. 14, 2020) (Durkin, J.)...........................................................3, 4

Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694 (1988)...................................................................................................................5

Water Splash, Inc. v. Menon,

137 S. Ct. 1504 (2017)...............................................................................................................5

Zhang v. Baidu.com Inc.,

293 F.R.D. 508 (S.D.N.Y. 2013) .............................................................................................12

Other Authorities

Federal Rule of Civil Procedure 4(f) ...........................................................................................3, 4

Federal Rule of Civil Procedure 4(f)(1)...............................................................................3, 4, 5, 9

Federal Rule of Civil Procedure 4(f)(3)................................................................................. passim

Federal Rule of Civil Procedure 4(h)(2)..........................................................................................3

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Plaintiffs Hangzhou Chic Intelligent Technology Co. (“Chic”) and Unicorn Global, Inc. 

(“Unicorn”) (collectively, “Plaintiffs”) submit this Memorandum of Law in opposition to 

Defendants Tomoloo DX, Tomoloo TC, Tomoloo Flagship (collectively, “Tomoloo Defendants”), 

and Defendant Gyroor US’ (“Gyroor”) (Gyroor and Tomoloo Defendants collectively referred to 

as “Moving Defendants”) Motion to Dismiss the Third Amended Complaint with Prejudice. 

INTRODUCTION

The Motion presents two questions for the Court: (1) whether the Court properly exercised 

its discretion in permitting electronic service under Rule 4(f)(3); and, (2) if so, whether Plaintiffs 

properly complied with the Court’s order. The answers are both affirmative under this Court’s 

recent precedent in Volkswagen Group of America, Inc. v. Brandcar Store, et al., No. 20-cv-3131, 

(N.D. Ill Sept. 14, 2020) (Durkin, J.)1and Strabala v. Zhang, 318 F.R.D. 81, 114-118 (N.D. Ill. 

2016) (Durkin, J). Following Volkswagen and Strabala, the Court properly permitted service by 

email and publication under the current circumstances, and Plaintiffs properly served Moving 

Defendants after receiving the requisite information from third-parties under the Court’s order. 

As to the first question, in moving to permit service by electronic means, Plaintiffs 

explained to the Court that Defendants are foreign entities that operate internet-based stores that 

sell infringing products, and that Defendants do so in an abusive manner which abuses the 

transparency afforded by the United States judicial system. See Third Am. Compl. ¶¶ 13, 38-40. 

Plaintiffs also presented evidence to show that when Defendants are made aware of an action

relating to the infringing products, Defendants move assets and change hosting platforms, 

engaging in what Plaintiffs have described as a virtual game of Whack-o-Mole. See id. Indeed, 

Plaintiffs later submitted evidence to this Court that Moving Defendants actually engaged in the 

 

1 A copy of this decision is attached to the Declaration of Christopher Binns, dated March 3, 2021 (“Binns 

Declaration”), which is attached to this memorandum of law as Exhibit B. 

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exact type of nefarious activity alleged in the Third Amended Complaint. See Dkt. No. 107, and 

Exhibit A (Declaration of Arthur T. Yuan) (explaining that after issuance of the TRO, stores 

believe to be associated with the Moving Defendants switched from one e-commerce platform to 

another).2 Thus, Plaintiffs presented sufficient evidence to the Court that electronic service was 

required, in part, to prevent Plaintiffs from suffering irreparable harm through Moving Defendants’ 

evasive tactics. The Court agreed and properly permitted service by publication and by email. See

Dkt. Nos. 42, 113, 147; see also Volkswagen, 20-cv-3131, at 4. 

As to the second question, shortly after entry of the Preliminary Injunction Order, dated 

November 24, 2020, Plaintiffs published the PI and the Third Amended Complaint on a dedicated 

website.3 See Binns Decl. ¶ 3. Following a hearing on December 23, 2020, the Court issued a 

modified Preliminary Injunction Order that was uploaded to the dedicated webpage on the same 

day. Id. ¶ 4. After receiving email addresses from third-party e-commerce platforms, Plaintiffs 

thereafter served on Moving Defendants by email the Summons, Third Amended Complaint, and 

PI. See Dkt. Nos. 149, 150, 168. Accordingly, Plaintiffs complied with the Court’s directives by 

both publishing the required documents on a dedicated webpage—which remains active—and by 

emailing these same documents to the email addresses provided to Plaintiffs. Volkswagen, 20-cv3131, at 2. 

The Parties do not dispute that electronic service is permitted under Rule 4. Rather, 

Moving Defendants argue that service must be effectuated through the Hague Convention. But 

that argument is simply an attempt to use the Hague Convention as a shield for their respective 

 

2 Plaintiffs are in the process of attempting to resolve its dispute with six stores listed in the Yuan Declaration who are 

or were selling infringing products on eBay.com: carrie_yux-5, mijia_store, pauta60, smg-store, strongjennie, and 

2013tankstrong001. Counsel for these defendants confirmed that Gyroor was the supplier of the infringing products. 

Binns Decl. ¶ 6. 

3 https://www.loeb.com/en/general/20-cv-4806. 

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infringing activities. Indeed, Moving Defendants do not—because they cannot—argue that they 

are somehow prejudiced by electronic service. By comparison, Plaintiffs would be prejudiced 

absent electronic service, because service under the Hague Convention will alert Moving 

Defendants to the lawsuit, caused untold months of needless delay, and allow them to effectively 

evade this enforcement action by moving products and assets. See Third Am. Compl. ¶¶ 13, 38-

40. As explained below, Moving Defendants are well aware of this lawsuit and have disregarded

this Court’s orders by continuing to open infringing stores in violation of the PI. See Exhibit C,

Declaration of Jing Cui (“Cui Declaration”). Moreover, this Court has twice rejected the same 

arguments raised by Moving Defendants, and should do the same here. See Volkswagen ̧ 20-cv3131, at 4; Strabala v. Zhang, 318 F.R.D. at 114-118.

Accordingly, this Court should deny Moving Defendants’ motion to dismiss.

ARGUMENT 

I. THE COURT PROPERLY EXERCISED ITS DISCRETION IN ORDERING

ELECTRONIC SERVICE AND PLAINTIFFS COMPLIED WITH THAT ORDER

A. Electronic Service Is Permitted Under Rule 4

Rule 4(h)(2) allows service of process on a foreign corporation as prescribed by Rule 4(f). 

Fed. R. Civ. P. 4(h)(2). Rule 4(f)(1) allows for service “by any internationally agreed means of

service[,]” including procedures “authorized by the Hague Convention on the Service Abroad of 

Judicial and Extrajudicial Documents,” and Rule 4(f)(3) permits service “by other means not 

prohibited by international agreement, as the court orders.” Fed. R. Civ. P. 4(f)(1), (4)(f)(3).

Under Rule 4(f)(3), this Court may order service through a variety of methods, “including 

publication, ordinary mail, mail to the defendant’s last known address, delivery to the defendant’s 

attorney, telex, and most recently, email,” provided there is no conflicting international agreement. 

Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1016 (9th Cir. 2002). Due process requires 

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that “the method of service crafted by the district court must be reasonably calculated, under all 

the circumstances, to apprise interested parties of the pendency of the action and afford them an 

opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 

306, 314 (1950) (internal quotations omitted). Rule 4(h)(2) allows service on a foreign corporation 

“in any manner prescribed for individuals by subdivision (4)(f) except personal delivery.” 

Here, considering the nature of Defendants’ infringing activities, the resulting irreparable 

harm to Plaintiffs, and the prejudice to the plaintiffs absent electronic service, see Third Am. 

Compl. ¶¶ 13, 38-40, the Court did not abuse its discretion by permitting electronic service.

Nuance Communs. Inc. v. Abbyy Software House, 626 F.3d 1222, 1239 (Fed. Cir. 2010) (“Under 

Rule 4(f)(3), federal courts have discretionary authority to direct service ‘by other means not 

prohibited by international agreements.’”); Rio Props, 284 F.3d at 1016 (“[T]he task of 

determining when the particularities and necessities of a given case require alternate service of 

process under Rule 4(f)(3)” is committed “to the sound discretion of the district court.”). Moving 

Defendants have failed to provide any evidence showing that the Court impermissibly ordered

electronic service or that they have suffered any prejudice resulting from electronic service. 

Indeed, Courts in this District have previously rejected Moving Defendants’ arguments and 

permitted service by electronic means. See Volkswagen 20-cv-3131, at 2; see also Gianni Versace, 

S.P.A. v. Yong Peng, et al., No. 18-cv-5385 (N.D. Ill. Feb. 27, 2019); and Strabala, 318 F.R.D. at

115.

Therefore, electronic service is proper here because (1) it was appropriately ordered by the 

Court on September 22, 2020 (Dkt No. 42) and November 24, 2020 (Dkt. No. 112) under the 

circumstances of this case; (2) as explained further below, it is not prohibited by the Hague 

Convention, and (3) it provided notice in accordance with Due Process requirements. 

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B. Moving Defendants Failed To Establish That Electronic Service is Improper 

in This Case

1. Attempting Service Under the Hague Convention is Not Mandatory

Under These Circumstances

The plain language of Rule 4(f) does not require Plaintiffs to attempt service under Rule 

4(f)(1) before seeking authorization to use an alternative means of service under Rule 4(f)(3). See

Nuance Communs., 626 F.3d at 1238 (“While Appellees argue that service must have been 

attempted under the Hague Convention before alternative service methods can be employed, this 

court disagrees.”); CFTC v. Caniff, 2020 U.S. Dist. LEXIS 33416, at *14 (N.D. Ill. Feb. 27, 2020)

(denying motion to dismiss for insufficient service); Volkswagen Group of America, Inc. v. 

5starautoparts2015, et al., No. 19-cv-7978 (N.D. Ill. March 31, 2020) (denying motion to dismiss 

for improper service); Monco v. Zoltek Corp., 2018 U.S. Dist. LEXIS 111967, at * 11 (N.D. Ill. 

Apr. 24, 2018) (explaining that a plaintiff “is not required to first attempt service through the Hague 

Convention under Rule 4(f)(1) before asking this Court to allow alternate means”). Courts in this 

District routinely permit alternative service of process in infringement cases notwithstanding the 

Hague Convention. See, e.g., Gianni Versace, S.P.A., supra (“Nor must Versace attempt service 

by contacting the Chinese Ministry of Justice, as suggested by [defendant]. The plain language of 

Rule 4 requires only that service be made as directed by the court and not prohibited by 

international agreement.”); see also Strabala, 318 F.R.D. at 114 (authorizing alternative service 

via e-mail pursuant to Fed. R. Civ. P. 4(f)(3)) (Durkin, J). 

Contrary to the Motion,

4

the Supreme Court in Water Splash, Inc. v. Menon, 137 S. Ct. 

1504 (2017) and Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988) does not 

 

4 Tomoloo Defs. Br. at 11; Gyroor Br. at 9. 

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require Hague Convention compliance prior to ordering alternative service under Rule 4. See 

Strabala, 318 F.R.D. at 115 n.36 (“...Volkswagenwerk ‘does not hold or even suggest that the 

Hague Convention must always be complied with before alternative service is ordered,’ and that 

the quoted language from that case is ‘dictum.’”). And also contrary to the Motion, alternate 

service under Rule 4 is neither the “last resort” nor “extraordinary relief,” but is one of several 

options by which an international defendant may be served.5 See Rio Props., Inc., 284 F.3d at 

1014-15 (“[N]o language in Rules 4(f)(1) or 4(f)(2) indicates their primacy, and certainly Rule 

4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting 

service of process by other means.”). In fact, “[C]ourt-directed service under Rule 4(f)(3) is 

favored as service under” Rule 4. Id. at 1015. Accordingly, Plaintiffs were not required to attempt 

service under the Hague Convention.

2. Electronic Service was Proper, Even If Defendants’ Physical Addresses 

Were Purportedly Available

As established above, Rule 4(f)(3) simply states that service can be effectuated “by any 

means not prohibited by international agreement.” Rule 4(f)(3) does not mention any requirement 

regarding attempts to identify, verify or serve a defendant at a purported physical address prior to 

requesting alternative service. Rather, “Rule 4(f)(3) provides the Court with flexibility and 

discretion empowering courts to fit the manner of service utilized to the facts and circumstances 

of the particular case.” Strabala, 318 F.R.D. at 100.

Court-directed electronic service under Rule 4(f)(3) is particularly appropriate where, like 

here, “there is a need for speed that cannot be met by following the Hague Convention method . . 

. ”, because of the injunctive relief sought by Plaintiff. Strabala, 318 F.R.D. at 110; see also 

Volkswagen, 20-cv-3131, at 3 (holding that electronic service was proper in part because of “the 

 

5 Tomoloo Defs. Br. at 3; Gyroor Br. at 3.

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need for speed in obtaining injunctive relief”). Article 15 of the Hague Convention provides that 

alternate methods may be used if a Central Authority does not respond within six months. 

Strabala, 318 F.R.D. at 100. Even if a purported address is real and Defendants are available for 

service at those addresses, it is nearly certain that the Chinese Central Authority will exceed six 

months in its attempt to effectuate service. See id. (request for service via the Chinese Central 

Authority pending over six months); see also Victaulic Co. v. Allied Rubber & Gasket Co., 2020 

U.S. Dist. LEXIS 82150, at *3 (S.D. Cal. May 8, 2020) (“ [T]he Ministry of Justice in China noted 

that service is ‘time-consuming and not efficient’ and confirmed that it often takes more than two 

years to complete. Moreover, the current global COVID-19 pandemic has likely complicated 

service efforts in China and will undoubtedly result in additional service delays in the future.”).

Moving Defendants heavily relied on the decision in Luxottica Group S.p.A. v. 

Partnerships, et al., 391 F. Supp. 3d 816 (N.D. Ill. 2019). But the Court in Luxottica Group has 

subsequently permitted electronic service in similar cases involving Chinese-based e-commerce 

stores. See, e.g., Spin Master Ltd., et al. v. California Pineapple Toy Store, et al., No. 20-cv-00628 

(N.D. Ill. Mar. 5, 2020). The Luxottica Group decision also does not demonstrate that this Court 

abused its discretion in granting electronic service, only that the Court in Luxottica Group came 

to a different decision when exercising its discretion under different circumstances. Indeed, this 

Court’s ruling in Volkswagen, where it rejected the same arguments raised by Moving Defendants,

was decided after Luxottica Group. Volkswagen, 20-cv-3131, at 2-4. Without a way to timely 

notify Defendants of the case, the harm to Plaintiffs and consumers would go unaddressed. As 

such, service was proper, even if physical addresses for Moving Defendants are purportedly 

available and presumably reliable.

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3. Even If the Hague Convention Applies, The Purported Available 

Addresses for Moving Defendants Were Unreliable 

The Hague Convention provides that it “shall not apply where the address of the person to 

be served with the document is not known.” Moving Defendants argue that their respective 

addresses were available and therefore the Hague Convention is applicable here.6 As an initial 

matter, service through the Hague Convention would alert Moving Defendants to the lawsuit, 

significantly delay of these proceedings, and allow irreparable harm to continue upon Plaintiffs. 

See Dkt. No. 147 at 8-9. Nonetheless, the purported addresses provided by Moving Defendants 

are unreliable and insufficient for purposes of service because such addresses cannot be verified.

An investigation of Moving Defendants’ e-commerce stores shows that Moving 

Defendants either provide unreliable return address or provide no return address at all. See Exhibit 

D, Declaration of Arthur T. Yuan, Dated March 3, 2021 (“Yuan Declaration”). Plaintiffs ordered

Infringing Products from Defendant Tomoloo Official and no address was provided upon 

purchase. Id. ¶ 3. Plaintiffs attempted to return the purchased hoverboard and engaged in 

conversations with Tomoloo Official representatives,7 where Plaintiffs were informed that the item 

should be returned to “100 John Hay Avenue, Kearny, NJ 07302.” Id. ¶ 9. An analysis of the 

above address indicates that no such address exists. Id. ¶ 10. Upon inputting the address into 

Google maps, Plaintiffs were directed to “Campy’s Express” located at 60 John Hay Avenue, 

Kearny, NJ. Id. But a cursory review of John Hay Avenue shows that “100 John Hay Avenue” 

does not exist, as John Hay Avenue is a small dead-end street with no thru way with addresses 

ranging from 2 to 60 John Hay Avenue. Id. Thus, the address provided to consumers is wholly 

unreliable. Furthermore, when attempting to return purchased Infringing Products from Defendant 

 

6 Tomoloo Defs. Br. at 7; Gyroor Br. at 6-7. 

7

Indicating that email is a reliable source of communication. 

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Gyroor, after initial communications between Plaintiffs and Defendant Gyroor representatives,8

Defendant Gyroor failed to respond to Plaintiffs and provided no return address. Id. ¶¶ 11-17.

Simply put, Moving Defendants’ addresses are unknown for the purposes of service under 

the Hague Convention. And Plaintiffs are not required to first attempt service to an address under 

the Hague Convention, especially when Plaintiffs reasonably believe service at a particular address 

would be ineffective. Advanced Access Content System Licensing Administrator, LLC v. Shen, 

2018 U.S. Dist. LEXIS 169603, at *11 (S.D.N.Y. Sep. 30, 2018).

4. The Hague Convention Does Not Prohibit Electronic Service

Moving Defendants argue that because China is a signatory to the Hague Convention, 

Plaintiffs are required to effectuate service of process through the formal channels established by 

the Hague Convention, and that e-mail service is not one of them.9 Courts have agreed that service 

by e-mail is not prohibited by the Hague Convention, including for China-based defendants. 

Strabala, 318 F.R.D. at 115, citing Maclean-Fogg Co. v. Ningbo Fastlink Equip. Co., 2008 U.S. 

Dist. LEXIS 97241, at *5 (N.D. Ill. Dec. 1, 2008) (“[t]he Hague Convention does not prohibit 

service by e-mail or facsimile”); see also Keck v. Alibaba.com, Inc., 2018 U.S. Dist. LEXIS 

128396, 2018 WL 3632160, at *3 (N.D. Cal. July 31, 2018) (“[T]here is no international agreement 

precluding service on China-based defendants by electronics means.”); Victaulic Co. v. Allied 

Rubber & Gasket Co., 2020 U.S. Dist. LEXIS 82150, at *7 (S.D. Cal. May 8, 2020) (“China’s 

objection to service by ‘postal channels’ does not prohibit service by ‘electronic means.’”). 

Further, limiting alternative service methods to only those explicitly authorized by China would 

necessarily render Rule 4(f)(3) superfluous and redundant of Rule 4(f)(1). See Nat’l Ass’n of Home 

 

8

Indicating that email is a reliable source of communication.

9 Tomoloo Defs. Br. at 4; Gyroor Br. at. 4. 

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Builders v. Defendants of Wildlife, 551 U.S. 644, 669 (2007) (“we have cautioned against reading 

a text in a way that makes part of it redundant”).

While China has objected to service by postal channels under Article 10 of the Hague 

Convention, courts have routinely recognized that such objections do not extend to service by email. See, e.g., Sulzer Mixpac AG v. Medenstar Indus. Co., 312 F.R.D. at 331-32 (collecting cases 

holding that service by e-mail does not violate any international agreement where the objections 

of the recipient nation are limited to those means enumerated in Article 10). As the Court in Sulzer 

Mixpac AG observed, limiting an Article 10 objection to service by postal mail recognizes the 

material differences between service by postal mail and e-mail, namely that “email 

communications may be more reliable than long-distance postal communications, and the arrival 

of an email at its destination address may be more readily tracked.” 312 F.R.D. at 332. See also

Victaulic Co. v. Allied Rubber & Gasket Co., 2020 U.S. Dist. LEXIS 82150, at *7 (S.D. Cal. May 

8, 2020) (“Although Article 10(a) references ‘postal channels,’ it does not mention service by 

email, online messaging system, or other electronic means. Thus, China’s objection to service by 

‘postal channels’ does not prohibit service by ‘electronic means.’”). 

The cases relied on by Moving Defendants10 are distinguishable because they do not 

involve e-mail service on China-based defendants, where service is not going to occur within the

required six months or the unique circumstances applicable to swarms of China-based e-commerce 

stores. The decision in Luxottica Group S.p.A. v. Partnerships, et al., 391 F. Supp. 3d 816 (N.D. 

Ill. 2019) cited cases involving defendants located in Switzerland (Elobied v. Baylock, 299 F.R.D. 

105 (E.D. Pa. 2014)), Germany (Agha v. Jacobs, 2008 U.S. Dist. LEXIS 109326 (N.D. Cal. May 

13, 2008)), and Mexico (Compass Bank v. Katz, 287 F.R.D. 392 (S.D. Tex. 2012))—all of which 

 

10 Tomoloo Defs. Br. at 13; Gyroor Br. at 10.

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involved different circumstances than China-based e-commerce stores here, including excessive 

delays by the Ministry of Justice of the People’s Republic of China. 

Besides, China’s internal procedures for effectuating service are irrelevant to the question 

of whether alternative service under Rule 4(f)(3) was proper in this country by this Court. Nanya 

Tech. Corp. v. Fujitsu, Ltd., 2007 U.S. Dist. LEXIS 5754, at *14 (D. Guam Jan. 25, 2007)

(explaining that the Court should not consider the receiving country’s laws of service when 

evaluating whether service under Rule 4(f)(3) was proper). Accordingly, service of process by email was appropriately ordered by this Court under Rule 4(f)(3). 

5. Electronic Service Satisfies Due Process Requirements

This Court also correctly found that service via e-mail comports with constitutional notions 

of due process, because it was reasonably calculated, under all of the circumstances, to apprise 

Moving Defendants of the pendency of this action and afford them an opportunity to present 

objections. See Maclean-Fogg Co., 2008 U.S. Dist. LEXIS 97241, at *5. Courts have routinely

held that communications to e-mail addresses listed on a defendant’s website comport with due 

process: “[w]hile email communications may also go astray or fail to come to the relevant 

individuals’ attention, the Court finds that in this case, service to the email address listed on 

defendant’s website is ‘reasonably calculated, under all circumstances, to apprise interested parties 

of the pendency of the action and afford them an opportunity to present their objections.’” Sulzer 

Mixpac AG, 312 F.R.D. at 332; and Volkswagen, 20-cv-3131, at 4. 

Here, Moving Defendants have actual notice of this lawsuit. After receiving email address 

information from third-party e-commerce platforms, and after the Court entered a modified 

Preliminary Injunction Order, Plaintiffs effectuated service of process on Tomoloo Defendants on 

Case: 1:20-cv-04806 Document #: 185 Filed: 03/03/21 Page 15 of 19 PageID #:5373
12

December 23, 2020 and on Gyroor on December 29, 2020.

11

 Dkt. Nos. 149, 150; Binns Decl. ¶¶ 

5-6. Plaintiffs later provided corrected service of process by email to Moving Defendants on 

January 29, 2021. Dkt. No. 168.; Binns Decl. ¶¶ 5-6. In their Motion, Moving Defendants 

acknowledge that they received the emails containing the pleadings12 and Defendant Gyroor even 

acknowledged receipt. See Binns Decl. ¶ 5.

Indeed, representatives from Moving Defendants have openly discussed the lawsuit with 

Plaintiffs and yet have intentionally not complied with the Court’s various orders. See Cui Decl. 

¶ 5-8. That alone further demonstrates the risk of irreparable harm by effectuating service by the 

Hague Convention and Moving Defendants’ intentions of using the Hague Convention as a shield 

for their infringing activities. Once again, Moving Defendants are engaging in the exact type of 

concerted activities that Plaintiffs alleged in the Third Amended Complaint. See Third Am. 

Compl. ¶¶ 39-40. Not surprisingly, the Motion fails to explain why service by e-mail somehow 

unfairly prejudices them or violates due process, even though Moving Defendants concede that 

they received the pleadings by email. Accordingly, Defendants’ objection to alternative service is 

nothing more than an attempt to create procedural hurdles that allow them to continue their 

infringing activities outside of this Court’s jurisdiction. 

C. Alternatively, Plaintiffs Should Be Permitted to Serve Moving Defendants by 

Serving Their U.S. Counsel

Although counsel for Moving Defendants has refused to accept service of process on behalf 

of Moving Defendants, due process does not require that the individuals served on behalf of foreign 

defendants have represented them or been authorized to accept service on their behalf. Brown v. 

China Integrated Energy, Inc., 285 F.R.D. 560, 565-66 (C.D. Cal. 2012) (authorizing service per 

 

11 Plaintiffs also published the pleadings and relevant orders on a dedicated webpage

(https://www.loeb.com/en/general/20-cv-4806). 

12 Tomoolo Defs. Br. at 6-7; Gyroor Br. at 7.

Case: 1:20-cv-04806 Document #: 185 Filed: 03/03/21 Page 16 of 19 PageID #:5374
13

Rule 4(f)(3) on China-based defendant’s American counsel). Such service would avoid the Hague 

Convention because the documents would be transmitted domestically: “[i]f valid service occurs 

in the United States, therefore, the Hague Convention is not implicated regardless of the location 

of the party.” Id. District courts routinely direct service on an international defendant’s U.S. 

counsel under Rule 4(f)(3), even if the counsel has not been expressly authorized to accept service 

on the defendant’s behalf. Zhang v. Baidu.com Inc., 293 F.R.D. 508, 516 (S.D.N.Y. 2013) 

(holding that China-based defendant could be served via its U.S. counsel, and that because service 

on counsel occurs domestically, it does not transmission of documents abroad and does not 

implicate the Hague Convention).

More importantly, courts have found that effecting service of process on counsel “erases 

any material doubt that [the defendant] will be provided with notice of the suit.” Huawei Techs. 

USA, Inc. v. Oliveira, No. 4:19-cv-229-ALMKPJ, 2019 U.S. Dist. LEXIS 120533, 2019 WL 

3253674, at *3 (E.D. Tex. July 19, 2019) (quoting WorldVentures Holdings, LLC v. MaVie, 2018 

U.S. Dist. LEXIS 209348, at *14 (E.D. Tex. Dec. 12, 2018)). By effecting service of process on 

Moving Defendants’ known U.S. counsel, who are already representing Moving Defendants in 

this matter, Moving Defendants are reasonably certain to be apprised of the pending action.

CONCLUSION 

Because Moving Defendants failed to establish that the Court improperly exercised its 

discretion on Rule 4(f)(3) and failed to show that Plaintiffs did not adhere to the order, the Court 

should deny Moving Defendants’ Motion to Dismiss the Complaint with Prejudice. Alternatively, 

if this Court determines that electronic service on Moving Defendants was insufficient, Plaintiffs

request this Court to order Moving Defendant’s counsel to accept service of process on behalf of 

Moving Defendants under Rule 4(f)(3).

Case: 1:20-cv-04806 Document #: 185 Filed: 03/03/21 Page 17 of 19 PageID #:5375
14

Date: March 3, 2021 Respectfully Submitted,

LOEB & LOEB LLP

By: /s/ Adam Kelly

Adam Kelly

Doug Masters

Arthur Yuan

Neil Nandi

321 North Clark Street, Suite 2300

Chicago, Illinois 60654

Tel.: (312) 464-3100

Fax: (312) 464-3111

Email: akelly@loeb.com 

Email: dmasters@loeb.com

Email: ayuan@loeb.com

Email: nnandi@loeb.com

Christopher Binns (admitted pro hac vice)

345 Park Avenue

New York, New York 10154

Tel.: (212) 407-4000 

Fax: (212) 407-4990 

Email: cbinns@loeb.com

Attorneys for Plaintiffs

Case: 1:20-cv-04806 Document #: 185 Filed: 03/03/21 Page 18 of 19 PageID #:5376
CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has been served on the 

following counsel of record via electronic mail on March 3, 2021.

Stephen Z. Vegh

VEGH IP LEGAL

Admitted Pro Hac Vice

svegh@veghlaw.com

1240 Rosecrans Ave. Ste. 120

Manhattan Beach, CA 90266

310-980-7440

Danielle S. McKinley

RM PARTNERS LAW LLC

dmckinley@rmpartnerslaw.com

305 N. Peoria, Ste. 200

Chicago, IL 60607

312-251-2292

Counsel for Tomoloo-US, Tomoloo-INE, 

Tomoloo-Franchise, and Tomoloo-Official

By: /s/ Christopher Binns

Adam Kelly

Doug Masters

Neil Nandi

Arthur Yuan

321 North Clark Street, Suite 2300

Chicago, Illinois 60654

Tel.: 312-464-3100

Email: akelly@loeb.com 

Email: dmasters@loeb.com

Email: ayuan@loeb.com

Christopher Binns (admitted pro hac vice)

LOEB & LOEB LLP

345 Park Avenue

New York, New York 10154

Tel.: (212) 407-4000 

Email: cbinns@loeb.com

Attorneys for Plaintiffs

Case: 1:20-cv-04806 Document #: 185 Filed: 03/03/21 Page 19 of 19 PageID #:5377