You'll care about this opinion if you litigate federal unfair competition cases and want to sue a foreign entity that has a trademark in the United States that you're challenging as deceptive. On an issue that's spit the district courts in the Ninth Circuit, it holds that you're allowed to serve the defendants through their registered agent in the Trademark Office rather than going through the (total pain in the butt) Hague Convention.
By contrast, if you're not one of those people, you might be at least marginally interested in footnote five of the opinion. Background: the foreign entity to be served defaulted in the district court and didn't appear in the Court of Appeals either, so there's no one to argue against the position that the Ninth Circuit panel ultimately takes today. So Judge Holly Thomas drops the following footnote:
"Jiaxing did not enter an appearance in this matter and therefore has not provided briefing in opposition to San Antonio’s position. Our review of the novel issue presented in this case has been aided in significant part by the district courts that have previously considered it, and, in particular, by the Eastern District of California’s decision in Gallo, 430 F. Supp. 2d 1064. Although we part ways with the Gallo court’s conclusion that Section 1051(e) applies only in administrative proceedings, we are grateful for its thorough analysis, which enabled us to fully consider both sides of this issue. In a similar vein, we are thankful for the helpful briefing and argument we received from the United States as amicus curiae."
Which is certainly nice.
One final (unrelated). Which I think I mentioned a half-dozen years or so ago in a different case, but which raised its head yet again in this opinion.
The last footnote of the opinion reads: "Costs on appeal are awarded to San Antonio." Doesn't it seem weird/unfair that costs on appeal should be awarded against a party who, as here, (1) didn't argue in favor of the position taken sua sponte by the district court below (indeed, who didn't even appear), and (2) also didn't argue in favor of that position on appeal?
I get that prevailing parties are ordinarily entitled to their costs, and the loser has to pay. That's the price of being on the wrong side of a lawsuit; e.g., doing something wrong.
But it still seems strange that you gotta pay costs for an appeal that you didn't initiate and didn't even fight -- and that you gotta pay 'em even even in the even you prevail on the merits on remand. Right?
