Spam-Filtered Email Service Unwinds a $13M Default Judgment–Imagination Products v. Omont

October 27, 2026 · by · in E-Commerce, Trademark

Imagination Products has a supplemental trademark registration in the color orange (Pantone Orange 021c) for hand-operated plumbing snakes. It claims that several defendants, including Omont, sell drain clog cleaning tools that violate its trade dress in the orange shade.

This is not a SAD Scheme case, but it is adjacent. The plaintiff sued the Chinese defendant but did not seek an ex parte TRO. It requested, and received, permission to serve the defendant by email. When the defendant no-showed, the court granted a default judgment to the plaintiff and awarded $13M+ damages against Omont.

If this had been a SAD Scheme case with a typical ex parte TRO, Omont would have learned of the proceedings, regardless of any attempted service, from the resulting marketplace freeze. Since that didn’t happen, Omont claims it first learned of the lawsuit when the marketplace delisted some of its items in response to the default judgment. The defendant went back into its email account, found the attempted email service in its spam folder, and then quickly ran to court to challenge the default judgment.

The court permits the challenge to the default judgment because:

defendant did not have notice of the suit. It is unsurprising that an email from an unknown foreign attorney would end up in defendant’s spam folder. Because, as defendant points out, there was no injunction in this case, there was no way for defendant—other than meticulously monitoring its spam folder—to learn about this litigation before the default judgment was entered against it. The court finds that the lack of notice afforded to defendant in these circumstances qualifies as “inadvertence, surprise, or excusable neglect.”

(Raise your hand if you “meticulously monitor” your spam folder LOL. Then again, you should. All of the email notices I get about class action settlements affecting me always mysteriously seem to end up in my spam folder, so I do actually get a few pennies for sorting through the spam).

The court adds that Kangol also “clarified a couple of months after the default judgment was entered here [that] the Hague Service Convention prohibits service by email in China.” This is true but incomplete. Kangol held: “if the Hague Service Convention applies, then service was improper because the Convention prohibits service by email in China. But the district court must first determine whether the Convention applies at all,” and remanded the case to determine the applicability of the Hague Convention. This court doesn’t address that threshold issue explicitly in this opinion.

Because of the new information,

The default judgment order awards plaintiff $13,335,764.46 in damages from defendant. The court cannot sustain such a significant award on a default judgment entered against a defendant who was not properly served.

This is also not precise. The court cannot sustain *any* damages award–even $1–against a defendant who was not properly served. The problem isn’t the size of the damages award; it’s the lack of due process.

There’s another problem with this case: now that the defendant is available to point out the case’s flaws, the trade dress claim may fall apart. The court says “defendant has shown that it has a meritorious defense” because “Defendant challenges that plaintiff’s alleged trade dress is inherently distinctive or has acquired secondary meaning.” This makes sense, because a supplemental trademark registration does not establish the mark’s validity. So it’s possible, or perhaps probable, that the court will find that the plaintiff has no rights to the color orange–and never did.

AND YET…the doctrinal limitations of the supplemental registration were available to the court before issuing a $13M final judgment, yet the judge greenlighted the default judgment nonetheless. The plaintiff would have gotten away with it but for the post-default adversarial advocacy.

It would be more fun watching default judgments fall apart if the stakes weren’t so serious. These situations may indicate that the court reached the wrong final conclusion. Each time that happens, it’s a reminder that courts routinely chunk their independent evaluation of unopposed advocacy; and worse, judges routinely don’t sanction or punish plaintiffs in those circumstances. This system of lopsided advocacy is irreparably broken, which reinforces why we need more due process in our adversary-based adjudication system, not less.

[Note 1: the court didn’t appear to take any steps to address the continued legitimacy of the trade dress claims against the other defaulted defendants, even though a busted trade dress would render the other default judgments also illegitimate. There are over $7M of other default judgments at stake, so this is not a small detail.].

[Note 2: Similarly, if email service against Omont was impermissible, does that mean or suggest that email service against the other defendants had the same defect? If so, that would be another reason to unwind the default judgments against them, but the court didn’t appear to ask that question either].

The “the email went to my spam folder” defense sounds a little like the venerable but typically mockable “dog ate my homework” defense (which doesn’t really even work in the digital era). Yet, the spam filter story has been told over and over about email service, and each failed service has extraordinary consequences for due process and the rule of law. The inevitability of spam filtered service emails–combined with the $13M mistake the court made predicated on email service–is a very good reason why email service should be extraordinarily rare, not a ready fallback when service is difficult via more traditional means.

Case Citation: Imagination Products Corp. v. ComingHere Direct, 2026 WL 3093999 (N.D. Ill. Oct. 16, 2026)

Prior Blog Posts on the SAD Scheme