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When technology lawyers hired by Pfizer Inc. get their hands on the folks at genericlipitors.com, they have a long list of patent, trademark and Internet piracy charges to press, in defense of Lipitor, the drug company’s $9.2-billion-a-year anti-cholesterol pill. The operative word is when, since the location of those responsible for the site remains clouded by the anonymity of the Internet. The pharmaceutical giant, whose main research facilities are in Groton, Conn., is asking U.S. District Judge Stefan R. Underhill for permission to serve process in India by an e-mail, retracing the steps of an allegedly illegal Internet sale. Ruling last month, Underhill held the door open for eventual e-mail service by Pfizer, but declined to allow it for now — at least until he gets more proof that it’s likely to work. DUE PROCESS HURDLES Jennifer Beth Rubin, of the New Haven offices of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, also represents Pfizer Ireland Pharmaceuticals and Pfizer subsidiary Warner-Lambert Co. in the case against Domains By Proxy Inc., a “John Doe” doing business as genericlipitors.com, and EconoServices (India) Ltd., which does business as econopetcare.com. Pfizer’s detailed complaint alleges extensive patent, trademark and unfair trade violations. It asserts that an Internet order placed in Connecticut for the drug Storvas, the so-called generic Lipitor, was taken on the genericlipitor.com site, and routed to econopetcare.com for processing. Ultimately the drug, which Pfizer contends is not an FDA-approved generic equivalent, was shipped to Connecticut. Apparently, genericlipitors.com employed Domains By Proxy, a Scottsdale, Ariz., service that stands in to shield the identity of the real registrant on the online “whois” database, turning a public registration into a private one. Under Rule 4(f)(3) of the Federal Rules of Civil Procedure, an individual in a foreign country can be served by any “means not prohibited by international agreement as may be directed by the court.” Such means, Underhill observed, have to comport with due process and be reasonably calculated to alert the defendants and give them a chance to present objections. He recognized the landmark 2002 9th U.S. Circuit Court of Appeals precedent allowing e-mail service, Rio Properties Inc. v. Rio International Interlink. It, too, was an intellectual property infringement case against an e-commerce site. “That case does not, however, stand for the proposition that e-mail service should always be permitted by a district court,” the judge noted. In Rio, the plaintiffs first tried conventional service to the address used to register a domain name used by Rio International Interlink, and through its lawyer, without success. It next searched for the defendant in its native country. “It was only after all these efforts failed that the plaintiff asked the district court to allow email service,” Underhill wrote. JUDICIAL EXPLORATION In this case, the judge said he’s not convinced e-mail will work, or that it’s the only means available to Pfizer. Underhill, who sits in Bridgeport, used his courthouse computer to do a little exploring. He typed in “genericlipitors.com” and got a “page unavailable” message. He said he then typed in “econopetcare.com” and got a white screen. The judge next checked out the “whois” database, where domain name registrants provide contact information. He found an e-mail address for econopetcare.com, but no e-mail contact information for genericlipitors.com. In its motion to serve the dot-com defendants by e-mail, Pfizer noted that it had already served Domains by Proxy Inc. “Accordingly, without more information from Pfizer,” Underhill concluded, “I do not feel confident that e-mails to any of the proposed e-mail addresses are likely to reach the defendants.” He added in a footnote that he has allowed e-mail service in at least one case where there had been verified e-mail correspondence between the parties. Two technical support employees at Domains By Proxy said its legal and company representatives can only be contacted by e-mail. An e-mail from The Law Tribune seeking comment had not been responded to by press time. Pfizer has had more success with e-mail service against Internet drug sellers in federal court in Delaware. Recently, U.S. District Judge Joseph J. Farman Jr. permitted e-mail service against Van Amudhan, doing business as LOOK4GENERICS.COM, Swapna Saranath, working as OFFSHOREPHARMA.COM, and Shrikant Koli, as ONLINERXDRUGSTORE.COM. In a May 11 order, Farman noted that Van Amudhan’s business Web site “offers no other contact information,” and that no international treaty would prohibit e-mail service. He agreed that Amudhan “prefers to be noticed and contacted by e-mail” and that it is appropriate in this setting.

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