IP Law Daily, TRADEMARK—2d Cir.: Dismissal of Chinese defendants in Baby Shark trademark case affirmed on appeal, (Dec 19, 2025)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

District court correctly found that Hague Service Convention barred email service on Chinese defendants, depriving it of personal jurisdiction.

The U.S. Court of Appeals for the Second Circuit affirmed the Southern District of New York’s dismissal of two Chinese companies from a trademark infringement suit involving “Baby Shark” merchandise, holding that service of process by email violated the Hague Service Convention and was therefore ineffective under the Federal Rules of Civil Procedure. The appellate court agreed that the Convention provides an exclusive framework for service abroad, that China has objected to alternative methods such as postal service, and that email service is not permitted. As a result, the district court lacked personal jurisdiction over the defendants, and dismissal for improper service was proper (Smart Study Co., Ltd. v. Shenzhenshixindajixieyouxiangongsi, No. 24-313 (2d Cir. Dec. 18, 2025)).

Background. The plaintiff/appellant, Smart Study Co., Ltd., is a global entertainment company headquartered in Seoul, South Korea. It is widely known for producing children’s educational content, most notably the viral song “Baby Shark,” performed by its preschool-focused brand Pinkfong. The defendants/appellees, Shenzhenshixindajixieyouxiangongsi and Changgesshangmaoyouxiangongsi, are China-based business entities engaged in the manufacture and sale of consumer goods. They were among numerous Chinese sellers accused of distributing allegedly counterfeit Baby Shark-branded products through online marketplaces such as Amazon.

Smart Study asserted trademark rights associated with the “Baby Shark” brand. The company owns multiple registered trademarks in the United States covering the Baby Shark name, logos, and related indicia used in connection with children’s entertainment and consumer products.

On July 6, 2021, Smart Study filed a sealed complaint in the Southern District of New York against 58 China-based defendants, alleging trademark infringement, copyright infringement, and unfair competition under federal and New York law. Smart Study accused the defendants of manufacturing, advertising, and selling counterfeit Baby Shark products in the United States.

Smart Study simultaneously sought ex parte relief, including a temporary restraining order, a preliminary injunction, and permission to serve the defendants by email under Federal Rule of Civil Procedure 4(f)(3). The district court granted these requests, and Smart Study served the defendants using email addresses obtained from Amazon. When most defendants failed to appear, the court entered a preliminary injunction and later a default judgment against many of them, awarding $2.45 million in statutory damages.

Two defendants appeared and challenged personal jurisdiction, arguing that email service on Chinese defendants violated the Hague Service Convention. Before the court ruled, Smart Study voluntarily dismissed those defendants. The district court later required Smart Study to justify service on the two remaining defendants—Shenzhenshixindajixieyouxiangongsi and Changgesshangmaoyouxiangongsi—and ultimately dismissed them without prejudice for failure to effect proper service. Smart Study appealed that dismissal.

Exclusivity of service methods. The central issue on appeal was whether the Hague Service Convention permits service by email on defendants located in China. The Second Circuit held that it does not. The court emphasized that the Convention, ratified by both the United States and China, was designed to “simplify, standardize, and generally improve” service abroad by creating an exclusive set of approved methods, primarily through a designated central authority.

Relying on Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the court reiterated that compliance with the Convention is mandatory whenever it applies. The Convention preempts inconsistent service methods, and parties may not unilaterally adopt alternative approaches simply because Convention service is slow or burdensome.

Email service. Smart Study argued that email service should be permitted because the Convention does not expressly prohibit it and because Article 10(a) allows service through “postal channels.” The court rejected this argument. Citing Water Splash, Inc. v. Menon, 581 U.S. 271 (2017), the appellate court explained that Article 10(a) applies only if the destination state has not objected. China has expressly objected to all methods under Article 10, including postal service.

The court further held that reading “postal channels” to include email would be inconsistent with the Convention’s text and structure. Allowing email service would effectively nullify the Convention’s carefully crafted procedures, as parties would always prefer faster and cheaper electronic service over central-authority transmission. The court agreed with the district court that the Convention creates a closed universe of permissible service methods, excluding email.

Exigency exception. Smart Study relied heavily on Rule 4(f)(3), which permits service by court-ordered means “not prohibited by international agreement.” The Second Circuit held that this rule cannot be used to bypass the Hague Convention. Because email service is prohibited by the Convention as applied to China, Rule 4(f)(3) offered no refuge.

The court also rejected Smart Study’s attempt to invoke exigent circumstances. Rule 4(f)(3) contains no emergency exception, and the Supreme Court has made clear that treaty compliance cannot be excused for convenience. Moreover, Smart Study’s own submissions suggested that the defendants’ physical addresses were ascertainable, undermining claims of necessity.

Default judgment arguments. In the alternative, Smart Study argued that service was valid under Rule 4(f)(2), which allows service according to foreign law when no international agreement governs. The court dismissed this contention, noting that the Hague Service Convention is an applicable international agreement and therefore forecloses reliance on Rule 4(f)(2).

Smart Study also invoked Article 15 of the Convention, arguing that the district court could enter default judgment as a “provisional or protective measure.” The Second Circuit disagreed, holding that Article 15 applies only when documents are transmitted through Convention-approved channels. Because service was improper, the district court lacked personal jurisdiction and correctly denied default judgment, consistent with Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207 (2d Cir. 2010).

Conclusion. The Second Circuit acknowledged the difficulties faced by rights holders combating overseas counterfeiting but stressed that courts must adhere to binding international agreements. Because Smart Study failed to serve the Chinese defendants in compliance with the Hague Service Convention, dismissal was affirmed.

The Case is No. 24-313.

Judge: Sullivan, R.

Attorneys: Ashly E. Sands (Epstein 3 Drangel LLP) for Smart Study Co., Ltd.

Companies: Smart Study Co., Ltd.

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