• March 22, 2013

Link Snacks, Inc., the makers of JACK LINK’S brand beef jerky, has filed a lawsuit in the United States District Court for the district of Minnesota (federal court, that is) alleging that 100 anonymous eBay users have sold counterfeit coupons and violating their trademarks. Link Snacks has also filed a motion for early discovery. Will Link Snacks find the culprits?

Link Snacks accuses 100 anonymous users of eBay of counterfeiting coupons (see the linked image, above) for free Jack Link’s brand beef jerky. The allegedly counterfeit coupons bear the JACK LINK’S trademark and, as you might expect, Link Snack’s has several registered trademarks for the JACK LINK’S brand. These coupons are apparently not redeemable or if they are redeemed, Link Snacks pays the retailer. This no doubt either costs money or causes problems between Link Snacks and their retailers. The sellers of these coupons are presumably making some money by trading on the name and goodwill associated with the JACK LINK’S brand. The complaint goes into great detail about how these coupons differ from genuine coupons including noting that genuine coupons have a full-color logo and a holographic strip. Assuming everything is true in the complaint, this might be a fairly run of the mill counterfeiting or trademark case.

Who Are The Defendants?

While allegedly counterfeit coupons are problematic enough, Link Snacks has a bigger problem. As of yet, they don’t know who their defendants are. This problem occurs frequently enough in litigation relating to online activities where identities are unknown, at least to the general public. The complaint identifies eBay usernames such as “riversidez” and “fishing-101.” While eBay might have some records that would help identify defendants, Links Snacks will have some work to do to learn the true identities of the defendants. Whether Link Snacks can identify the alleged culprits may depend on the records that eBay or other service providers keep.

There are two procedural problems for Link Snacks at this stage. First, the federal rules generally do not allow discovery until after an initial conference, where the parties try to agree on the scope of discovery for the case. Second, the complaint must be served within 120 days of filing. Link Snacks probably has some good arguments to allow limited early discovery and their motion to allow limited early discovery may succeed. They will probably have a good argument for allowing additional time to serve the complaint assuming they are still working towards identification when 120 days expires. These scenarios are becoming more common and as written, the federal rules don’t seem to offer much guidance.

Paul Godfread practices trademark, copyright, and business law.  You can visit his website at www.godfreadlaw.com.   You can follow him on twitter @paulgodfread.

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