DocketNumber： Docket No. 01-7680
Citation Numbers： 310 F.3d 293, 64 U.S.P.Q. 2d (BNA) 1879, 2002 U.S. App. LEXIS 23149, 2002 WL 31478839
Judges： Cabranes, Sotomayor, Straub
Filed Date： 11/7/2002
Status： Precedential
Modified Date： 11/5/2024
Plaintiff Mattel, Inc. (“Mattel”) appeals from orders entered by the United States District Court for the Southern District of New York (Cote, J.) on May 2 and May 17, 2001, dismissing Mattel’s claims against the defendant domain names (collectively, the “Domain Names”) for lack of in rem jurisdiction under the Anticybersquatting Consumer Protection Act of 1999 (“ACPA”), 15 U.S.C. § 1125(d). We affirm, holding that (1) subsection (d)(2)(A) of the ACPA provides for in rem jurisdiction only in the judicial district in which the registrar, registry, or other domain-name authority that registered or assigned the disputed domain name is located, and (2) subsection (d)(2)(C) does not provide an additional basis for in rem jurisdiction.
BACKGROUND
I. Facts
The underlying facts are not in dispute. Mattel owns registered trademark rights to “Barbie,” “Hot Wheels,” and other well-known marks. To protect these marks against allegedly unlawful domain-name registration and use, Mattel filed this in rem action against the Domain Names in the Southern District of New York on November 15, 2000, seeking cancellation or transfer of the Domain Names under the ACPA, 15 U.S.C. § 1125(d).
A domain name is a unique string of characters or numbers that typically is used to designate and permit access to an Internet website. See Sporty’s Farm L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 492-93 (2d Cir.2000). The widespread use of domain names in recent years has been accompanied by a phenomenon known as “cybersquatting,” which involves
the registration as domain names of well-known trademarks by non-trademark holders who then try to sell the names back to the trademark owners. Since domain name registrars do not check to see whether a domain name request is related to existing trademarks, it has been simple and inexpensive for any person to register as domain names the marks of established companies. This prevents use of the domain name by the mark owners, who not infrequently have been willing to pay “ransom” in order to get “their names” back.
Id. at 493 (citing H.R.Rep. No. 106-412, at 5-7 (1999); S.Rep. No. 106-140, at 4-7 (1.999)). In order to combat such bad-faith registration or use of domain names, Congress enacted the ACPA as a supplement to the federal trademark statute. The ACPA applies to all domain names registered before, on, or after the date of enactment, November 29, 1999. Pub.L. No. 106-113 tit. III § 3010, 113 Stat. 1501, 1501A-552 (1999).
Shortly after filing this action in the Southern District, Mattel arranged to have “registrar’s certificates” for each of the Domain Names sent by their respective domain-name authorities and deposited with the district court. Under the ACPA, a registrar’s certificate is understood to constitute a “document[] sufficient to establish [a district court’s] control and authority regarding ... the use of the domain name.” 15 U.S.C. § 1125(d)(2)(C)(ii). Depositing such documentation with the district court also serves to signify, in the manner of interpleader, the registrar’s disinterested surrender of the disputed property to the adjudicative authority of the court. See id. § 1125(d)(2)(D); see also FleetBoston Fin. Corp. v. Fleetbostonfinancial.com, 138 F.Supp.2d 121, 126 (D.Mass.2001) (“[I]t appears the deposit of registration documents was designed to relieve registration authorities of the burdens of appearing in domain name dispute litigation by formalizing a procedure through which those authorities can simply deposit the disputed intangible in a manner not unlike interpleader.”).
II. The Proceedings Below
A. The Preliminary Conference
The proceedings below were complicated by an unfortunate but ultimately innocuous confusion of terminology between “subject matter jurisdiction” and “in rem jurisdiction.” The confusion was initiated by counsel for captainbarbie.com at the preliminary conference held on March 30, 2001, when counsel raised a “concern ... about the subject matter jurisdiction of the court” and then proceeded to argue that Mattel’s broad interpretation of § 1125(d) (the in rem jurisdiction provision) was an incorrect invocation of the “subject matter jurisdiction [sic ] of the court.” Both parties as well as the court continued to refer to “subject matter jurisdiction” instead of “in rem jurisdiction” throughout the conference.
The record shows that, muddled as their terminology was, the parties and the court essentially understood the substance of the two concepts. Although the district judge
B. The District Court Decision
The district court’s opinion, which states that captainbarbie.com “has raised the issue of whether this Court has subject matter jurisdiction over this in rem action,”
The district court reached this conclusion by determining that: (1) § 1125(d)(2)(A) of the ACPA does not allow in rem jurisdiction “except in the judicial district in which the domain name registry, registrar, or other domain name authority is located”; (2) § 1125(d)(2)(C), which Mattel argued provides an additional basis for in rem jurisdiction in any other judicial district where a registrar’s certificate or similar documentation has been deposited with the court, exists simply “to facilitate the continuation of litigation in one of the districts identified in subpara-graph (2)(A)”; and (3) interpreting § 1125(d)(2)(C) as a basis for in rem jurisdiction “would run afoul of the due process clause of the Fifth Amendment of the United States Constitution.” Mattel, Inc., 2001 WL 436207, at *2 (quoting FleetBoston, 138 F.Supp.2d at 125, 129, 135).
The district court dismissed the action in orders entered on May 2 and May 17, 2001. This timely appeal followed. We
DISCUSSION
I. Standard of Review
We review de novo a dismissal for lack of in rem jurisdiction. LiButti v. United States, 178 F.3d 114, 122 (2d Cir.1999); Dluhos v. The Floating & Abandoned Vessel, 162 F.3d 63, 68 (2d Cir.1998). On de novo review, “the burden of proving jurisdiction is on the party asserting it,” Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994), although, prior to discovery, this burden is a lenient one, inasmuch as “a plaintiff may defeat a motion to dismiss based on legally sufficient allegations of jurisdiction,” Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566-67 (2d Cir.1996).
II. Whether the District Court Dismissed for Lack of Subject Matter Jurisdiction
On appeal, as below, Mattel seeks to make subject matter jurisdiction an issue and argues that the district court erred in dismissing the action for lack of “subject matter jurisdiction.”
As noted above, the district court did not dismiss this action for lack of subject matter jurisdiction, despite the court’s inadvertent use of that term at the preliminary conference and in its written orders. Nor did captainbarbie.com ever argue, in substance, that the court lacked subject matter jurisdiction over this federal-question action. Subject matter jurisdiction is clearly satisfied here because Mattel’s claims are founded upon a federal statute that confers subject matter jurisdiction on the district and appellate courts. See 15 U.S.C. § 1121(a) (“The district ... courts of the United States shall have original jurisdiction and the courts of appeal of the United States ... shall have appellate jurisdiction, of all actions arising under [the federal trademark statute, which includes the ACPA], without regard to the amount in controversy or to diversity or lack of diversity of the citizenship of the parties.”); see also 28 U.S.C. § 1331 (federal question jurisdiction), § 1338(a) (“The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to ... trademarks.”); Porsche Cars N. Am., Inc. v. Porsche.Net, 302 F.3d 248, 255 (4th Cir.2002) (“[Plaintiff trademark owner’s] assertion of substantive claims under federal statutes, the ACPA and the trademark-dilution statute, invokes a federal court’s subject-matter jurisdiction....”).
III.Whether the District Court Properly Dismissed for Lack of In Rem Jurisdiction
The issue of in rem jurisdiction, which is one of first impression in this Circuit, presents greater complexities. The ACPA, under 15 U.S.C. § 1125(d)(1), allows a trademark owner to pursue an in personam civil action against an alleged trademark infringer. If the court finds that in personam jurisdiction is not available or that the infringer cannot be located, § 1125(d)(2) allows the trademark owner to proceed against the domain name itself. Id. § 1125(d)(2)(A)(ii). This in rem jurisdiction was provided in part to address the situation where “a non-U.S. resident cybersquats on a domain name that infringes upon a U.S. trademark.” 145 Cong. Rec. H10,823, H10,826 (Oct. 26, 1999) (section-by-section analysis of ACPA); see also Standing Stone Media, Inc. v. Indian-countrytoday.com, 193 F.Supp.2d 528, 532 (N.D.N.Y.2002) (noting that the ACPA’s in rem jurisdiction was provided “to counter the unlawful activity of foreign-resident cy-bersquatters”).
A. The Language and Structure of § 1125(d)(2)
The parties dispute the meaning and function of two subsections of 15 U.S.C. § 1125(d)(2). Subsection (d)(2)(A) provides that an in rem civil action may be filed “in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located .Id. § 1125(d)(2)(A). Subsection (d)(2)(C) states that the “situs” of a domain name in an in rem action shall be deemed to be
in the judicial district in which (i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or (ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.
Id. § 1125(d)(2)(C). Mattel argues that the latter subsection supplements and effectively expands the jurisdictional grant contained in the former subsection by permitting suit to be brought in any judicial district in which sufficient documents evidencing the disputed domain name are deposited with the district court. Accordingly, Mattel contends that it was simply following statutory instructions when it opted to file suit in the Southern District of New York and then arranged to have the Maryland registrar deposit domain-name documentation with that court. Captainbarbie.com argues, however, that subsection (d)(2)(A) provides the sole basis for in rem jurisdiction under the ACPA, and that subsection (d)(2)(C) simply describes the legal situs of the domain name once an in rem action has been properly commenced in the judicial district in which the domain-name registrar or a similar authority is located.
We begin, as we must, with a plain-meaning analysis of the language and structure of § 1125(d)(2). Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); Senator Linie Gmbh & Co. Kg v. Sunway Line, Inc., 291 F.3d 145, 154 (2d Cir.2002); see also Grif
Thus, the arrangement of § 1125(d)(2) separates, conceptually and chronologically, the prescriptive jurisdiction-granting language of subsection (d)(2)(A) from the descriptive language of legal situs in subsection (d)(2)(C). Cf. FleetBoston, 138 F.Supp.2d at 128 (holding that § 1125(d)(2) “assumes a temporal sequence that makes it impossible for [§ (2)(C) ] to provide jurisdiction independent of subparagraph (2)(A)”). Moreover, while subsection (d)(2)(A) speaks of “filling] an in rem civil action,” subsection (d)(2)(C), which begins with the words “[i]n an in rem action under this paragraph,” plainly presupposes that such an action has already been filed in a judicial district referred to in subsection (d)(2)(A), and then proceeds to describe the domain name’s legal situs during that action. Thus, by the time we reach subsection (d)(2)(C), we are already “in” litigation that was commenced pursuant to subsection (d)(2)(A). Nothing on the face of the statute suggests that a plaintiff may alter this procedural sequence, as Mattel did, by filing suit in a judicial district of its own choosing, and then attempting unilaterally to relocate the domain name’s legal situs to buttress that choice.
In addition to the plain meaning of the statute’s language, the canon of statutory interpretation known as generalia specialibus non derogant — general provisions do not qualify specific ones — -is applicable here. See Senator Linie Gmbh, 291 F.3d at 157. It would be odd for Congress to have taken pains to enact subsection (d)(2)(A) with its specific procedure for filing an in rem action “in the judicial district in which the domain registrar ...
B. The Legislative History of the ACPA
The legislative history of the ACPA underscores the temporal sequencing that we have identified in § 1125(d)(2):
When a court of appropriate jurisdiction receives a complaint filed pursuant to this section, the court will notify the registrar, registry, or other authority who shall expeditiously deposit with the court documents to establish control and authority regarding the disposition of the registration and use of the domain name.
145 Cong. Rec. at H10,826. Congress’s reference to “a court of appropriate jurisdiction receiving] a complaint filed pursuant to this section” would be practically meaningless if it were read to suggest that the filing of a complaint in any district court in the United States could render that court one of “appropriate jurisdiction.” Clearly, “appropriate jurisdiction” is a status that precedes and is-independent of the filing of the complaint, and is conferred by the presence of the registrar or other domain-name authority within that judicial district. Subsection (d)(2)(D) of the ACPA, echoing the language of subsection (d)(2)(A), reflects this intention of Congress:
Upon receipt of written notification of a filed, stamped copy of a complaint filed by the owner of a mark in a United States district court under this paragraph, the domain name registrar, domain name registry, or other domain name authority shall expeditiously deposit with the court documents sufficient to establish the court’s control and authority regarding the disposition of the registration and use of the domain name to the court.
15 U.S.C. § 1125(d)(2)(D)(i)(D (emphasis added). Thus, both the language of the statute and its legislative history indicate that in rem jurisdiction is a preexisting fact determined by the location of the disputed domain name’s registrar or a similar authority, and that the subsequent deposit of sufficient documents with a court of appropriate jurisdiction confirms the domain name’s legal situs as being in that judicial district for purposes of the litigation.
This type of in rem jurisdiction still requires a nexus based upon a U.S. registry or registrar [that] would not offend international comity.... Finally, this jurisdiction does not offend due process, since the property and only the property is the subject of the jurisdiction, not other substantive personal rights of any individual defendant.
H.R.Rep. No. 106-412, at 14 (1999). This language makes it clear that Congress considered the “registry or registrar” to provide a “nexus” for in rem jurisdiction under the ACPA. Nowhere does the legislative history suggest that this nexus might be supplied by domain-name documentation alone. Rather, it is the presence of the domain name itself — the “property [that] is the subject of the jurisdiction”- — -in the judicial district in which the registry or registrar is located that anchors the in rem action and satisfies due process and international comity.
The legislative history also shows that Congress conceived of § 1125(d)(2) as authorizing the type of in rem proceeding that, in contrast to “quasi in rem ‘attachment’ jurisdiction,” was found by the Supreme Court in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), to present few if any due process concerns.
when claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant’s claim to property located in the State would normally indicate that he expected to benefit from the State’s protection of his interest.
Shaffer, 433 U.S. at 207-08, 97 S.Ct. 2569; see also Chapman v. Vande Bunte, 604
In sum, we find that the legislative history of the ACPA reveals Congress’s concern to establish a circumscribed basis for in rem jurisdiction that is grounded in the “nexus” provided by the registrar or other domain-name authority having custody of the disputed property. This congressional solicitude is fully consistent with what we find to be the plain meaning of § 1125(d)(2)(A): that an in rem action may be brought only “in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located.”
C. The Role of Subsection (d)(2)(C) Within the Statutory Scheme
Mattel contends that if subsection (d)(2)(A) required a trademark owner to commence an in rem action only in the judicial district in which the domain-name registrar or a similar authority is located, then subsection (d)(2)(C)(ii) would be rendered “meaningless” because subsection (d)(2)(C)(i) “would always apply.” Another way of phrasing Mattel’s argument is to ask why Congress chose to conjoin subsections (d)(2)(C)(ii) and (d)(2)(C)(ii) by “or” instead of “and” — the more logical choice, at first glance, if Congress’s intention had been to confine in rem litigation to the judicial district of registration.
It is not difficult to imagine scenarios in which the disjunctive “or” in subsection (d)(2)(C) might become meaningful.
Suppose, again, that the disputed domain name’s “registrar” is located in the Southern District of New York, but the domain name’s “registry” is based in the
Each of these hypothetical scenarios is consistent with the language and structure of § 1125(d)(2), which require that an in rem action under the ACPA be commenced in the judicial district in which the subject domain name’s registrar, registry, or other authority is located, followed by deposit of sufficient domain-name documentation with the court in that district. No scenario consistent with this statutory scheme, however, would permit an ACPA plaintiff to establish in rem jurisdiction by filing a complaint in a judicial district not contemplated by subsection (d)(2)(A) and then unilaterally seeking to effect a transfer of legal situs to that district. Cf. R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir.1999) (holding that when a res is not in the court’s actual or constructive possession, traditional principles of in rem jurisdiction dictate that the court may not adjudicate rights to the res and effectively bind others who may have possession); see also Restatement (Second) of Conflicts of Laws § 60 cmt. d (1971) (“A State will not usually exercise judicial jurisdiction to affect interests in a chattel brought into its territory without the consent of the owner ....”).
It follows that, in the present case, Mattel’s unauthorized arrangement to have registrar’s certificates for captainbarbie.com and the other Domain Names transferred from Maryland, Virginia, and California for deposit with the Southern District of New York was an inappropriate and ineffectual method of establishing in rem jurisdiction under the ACPA. Cf. Greatdomains.Com, 177 F.Supp.2d at 659 (holding an ACPA plaintiffs actions “insufficient” to establish in rem jurisdiction and to “satisfy the fairness requirements of the Constitution” where “[t]he only connection between the domain names and the forum ... is that the domain names have been ‘brought’ into the forum by [plaintiff] to facilitate its convenience in litigating the matter”). Simply put, Mattel attempted to create jurisdiction in a judicial district where the disputed property or its legal
In sum, we hold that the ACPA’s basic in rem jurisdictional grant, contained in subsection (d)(2)(A), contemplates exclusively a judicial district within which the registrar or other domain-name authority is located. A plaintiff must initiate an in rem action by filing a complaint in that judicial district and no other. Upon receiving proper written notification that the complaint has been filed, the domain-name authority must deposit with the court documentation “sufficient to establish the court’s control and authority regarding the disposition of ... the domain name,” as required by subsection (d)(2)(D). This combination of filing and depositing rules encompasses the basic, mandatory procedure for bringing and maintaining an in rem action under the ACPA. Subsection (d)(2)(C) contributes to this scheme by descriptively summarizing the domain name’s legal situs as established and defined in the procedures set forth in subsections (d)(2)(A) and (d)(2)(D). Accordingly, we affirm the district court’s conclusion that it did not have in rem jurisdiction over the Domain Names in this action.
IY. Waiver and Transfer
Mattel asks us to determine whether captainbarbie.com and mattle.com waived objections to in rem jurisdiction in the Southern District by failing to raise that defense in their answers. Mattel also seeks a determination of whether the district court abused its discretion in failing to order transfer of the various in rem actions to the proper district courts. These issues, however, were neither presented to nor expressly ruled on by the district court. “[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.” Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994); see also Gurary v. Winehouse, 190 F.3d 37, 44 (2d Cir.1999) (“Having failed to make the present argument to the district court, plaintiff will not be heard to advance it here.”). Mattel did not raise issues of waiver or transfer at the preliminary conference below, and it arguably abandoned these issues by choosing to devote its April 13, 2000 brief to matters plainly unrelated to the substantive dispute over in rem jurisdiction. Although we may exercise our discretion to consider a newly-raised issue when, for example, “we think it necessary to remedy an obvious injustice,” Greene, 13 F.3d at 586, we see no injustice in refusing to consider issues that Mattel strategically sidestepped below.
Were we to address the waiver and transfer issues on the merits, however, we would still reject Mattel’s arguments as a matter of law. Assuming, without deciding, that objections to in rem jurisdiction under the ACPA can be waived through failure to raise that defense “by motion under [Rule 12 or] in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course,”
This Court has observed that, to preserve the defense of lack of personal jurisdiction, a defendant need only state the defense in its first responsive filing and need not articulate the defense with any rigorous degree of specificity. Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 730 (2d Cir.1998). Captain-barbie.com substantially satisfied this standard when it asserted its challenge to in rem jurisdiction explicitly and vigorously at the preliminary conference on March 30, 2001, almost two weeks before the date (April 10) that Mattel and captainbarbie.com had agreed on as the deadline for answering. Moreover, immediately after the court announced April 13 as the date for submission of Mattel’s brief addressing the issue of in rem jurisdiction, counsel for captainbarbie.com offered to address that issue on April 13 in “a motion to dismiss in lieu of an answer or would the court prefer that we answer [by April 10, as agreed] and submit on the 13th on the issue of jurisdiction?” The court responded by discouraging captainbarbie.com from addressing the jurisdictional issue until “plaintiff and [the court] take a first cut [in Mattel’s brief-in-chief to be submitted on April 13].” The court also assured captainbarbie.com that its right “to submit something to me thereafter” would be “preserved].”
Furthermore, unlike Mattel, which chose to discuss subject matter jurisdiction in its April 13, 2000 brief in disregard of the issue of in rem jurisdiction that clearly was of concern to the court, captainbar-bie.com followed the court’s instructions by discussing in rem jurisdiction in its April 17 response brief — an act that Mattel would now have us construe as a waiver. Neither fairness nor common sense would permit such a result in these circumstances. Cf. Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 60-61 (2d Cir.1999) (observing that in determining whether waiver or forfeiture of objections to personal jurisdiction has occurred, “we consider all of the relevant circumstances”).
Unlike captainbarbie.com, mattle.com answered Mattel’s complaint prior to the preliminary conference.. Paragraph 1 of Mattel’s complaint stated simply that Mattel was bringing “this in rem action” under the ACPA, while Paragraphs 2 and 3 explicitly set forth statutory bases for subject matter jurisdiction and venue, respectively. In response to these paragraphs, and to Paragraph 4, which described Mattel’s business locations, mattle.com’s answer stated: “Denies knowledge or information sufficient to form a belief as to the truth of the allegations of paragraphs 1 through 4 of this complaint, except admits that Mattel purports to assert claims for relief arising under 15 U.S.C. § 1125(d) and respectfully refers questions of law regarding jurisdiction and venue to this Court.”
Although the nature of any objections it may have had is unclear, mattle.com’s answer clearly fell short of admitting Mattel’s allegations regarding jurisdiction and venue, and specifically referred the issue of in rem jurisdiction to the district court. Moreover, Mattel’s complaint did not set forth a factual basis for the exercise of in rem jurisdiction, and thus there was no specific factual allegation to which mat-tle.com could have replied. Under more typical circumstances, a court might be concerned that mattle.com failed properly
Similarly, the district court did not err or abuse its discretion in failing to order transfer of the in rem action. Transfer of a case fór the convenience of the parties or to cure defects of venue or jurisdiction may be ordered by the court if such transfer is “in the interest of justice.” 28 U.S.C. §§ 1404(a), 1406(a), 1631. Here, transfer would not be in the interest of justice. Mattel had notice and opportunity, both before and after the district court entered its first order on May 2, 2001, to make arguments opposing dismissal for lack of in rem jurisdiction. That Mattel chose a different strategy is now past cure.
CONCLUSION
For the foregoing reasons, we affirm the district court’s dismissal of Mattel’s action against captainbarbie.com, mattle.com, and the other Domain Names for lack of in rem jurisdiction under the ACPA.
. Section 1125(d)(2), to which we refer throughout this opinion, reads, in relevant part:
(2)(A) The owner of a mark may file an in rem civil action against a domain name in the judicial district in which the domain name registrar, domain name registry, or other domain name authority that registered or assigned the domain name is located if
(i) the domain name violates any right of the owner of a mark registered in the Patent and Trademark Office, or protected under subsection (a) or (c) of this section; and
(ii) the court finds that the owner—
(I) is not able to obtain in personam jurisdiction over a person who would have been a defendant in a civil action under paragraph (1); or
(II) through due diligence was not able to find a person who would have been a defendant in a civil action under paragraph (1) by-
*295 (aa) sending a notice of the alleged violation and intent to proceed under this paragraph to the registrant of the domain name at the postal and e-mail address provided by the registrant to the registrar; and
(bb) publishing notice of the action as the court may direct promptly after filing the action.
(B) The actions under subparagraph (A)(ii) shall constitute service of process.
(C) In an in rem action under this paragraph, a domain name shall be deemed to have its situs in the judicial district in which
(i) the domain name registrar, registry, or other domain name authority that registered or assigned the domain name is located; or
(ii) documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name are deposited with the court.
(D)(i) The remedies in an in rem action under this paragraph shall be limited to a court order for the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark. [Ujpon receipt of written notification of a filed, stamped copy of a complaint filed by the owner of a mark in a United States district court under this paragraph, the domain name registrar, domain name registry, or other domain name authority shall
(I) expeditiously deposit with the court documents sufficient to establish the court’s control and authority regarding the disposition of the registration and use of the domain name to the court; and
(II) not transfer, suspend, or otherwise modify the domain name during the pen-dency of the action, except upon order of the court.
(ii) The domain name registrar or registry or other domain name authority shall not be liable for injunctive or monetary relief under this paragraph except in the case of bad faith or reckless disregard, which includes a willful failure to comply with any such court order. [...]
. A domain name "registrar” is one of several entities licensed by the Internet Corporation of Assigned Names and Numbers ("ICANN”) to grant domain names to applicants, or "registrants.” David Bender, Computer Law § 3D.03[3] at 3D-56 (updated to 2000). The domain name "registry,” by contrast, is the single official entity that maintains a list ("a registry”) of all "top-level” domain names and that maintains all official records regarding the registrations of such names. Id.
. The precise location of captainbarbie.corn's registrar is not entirely clear. Mattel states that the registrar is Alabanza, Inc., which has its principal office in Bethesda, Maryland. Captainbarbie.com states that the registrar is BulkRegister.com, "a Maryland corporation with offices in Baltimore.” Apparently, Alabanza, Inc. and BuIkRegister.com are related entities or the same entity, as the "registrar's certificate” in this case refers to the registrar as "Alabanza, Inc. and/or BuIkRegister.com.” Whether captainbarbie.com is registered in Baltimore or Bethesda is immaterial to this appeal.
. The ACPA was less than a year old when Mattel filed this action in the Southern District. During the preliminary conference, the district judge observed that this case would be “my first litigated cybersquatting case.”
. In the same opinion, the district court ordered Mattel to show cause why a consent judgment previously entered against four other defendants (matellsoftware.com, ma-tellsoftware.net, matellsoftware.org, and masteroftheuniverse.com) should not now be vacated. Mattel, Inc., 2001 WL 436207, at *3. Mattel responded by pointing out that these defendant domain names were all registered through Register.com, located in New York City within the Southern District of New York. Accordingly, the district court entered a second order on May 17, 2001, indicating that the consent judgment entered as to these defendants would not be vacated. These four domain names therefore are not participating in this appeal.
. The district court did not indicate why personal jurisdiction could not be obtained over an Australian company that had registered a domain name in the United States, and the parties do not address this issue on appeal. Other courts have expressly or tacitly found that ACPA plaintiffs could not obtain personal jurisdiction over non-U.S. persons or entities whose only contact with the United States was registering a domain name here. See, e.g., Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 223 (4th Cir.2002) (stating that a Buenos Aires company's "mere act of registering the Domain Names in Virginia was deemed insufficient to provide personal jurisdiction over [the company]''); FleetBoston, 138 F.Supp.2d at 122 (noting that "plaintiff concedes [that a Brazilian resident] has had no apparent contact with the United States (other than registering the domain name) and is said not to be amenable to conventional process in any United States jurisdiction"). We need not reach this issue in the present case.
. Congress clearly intended to treat domain names as property for purposes of the ACPA's in rem provisions. See 145 Cong. Rec. at H10,826 ("[T]his [in rem] jurisdiction does not offend due process, since the property and only the property is the subject of the jurisdiction, not other substantive personal rights of any individual defendant.”); see also Porsche Cars N. Am., 302 F.3d at 260 ("Congress may treat a domain name registration as property subject to in rem jurisdiction if it chooses, without violating the Constitution.”); Caesars World, Inc. v. Caesars-Palace.Com, 112 F.Supp.2d 502, 504 (E.D.Va.2000) ("There is no prohibition on a legislative body making something property. Even if a domain name is no more than data, Congress can make data property and assign its place of registration as its situs.”).
. The Supreme Court has distinguished among the various types of civil actions: "A judgment in personam imposes a personal liability or obligation on one person in favor of another. A judgment in rem affects the interests of all persons in designated property. A judgment quasi in rem affects the interests of particular persons in designated property. The latter is of two types. In one the plaintiff is seeking to secure a pre-existing claim in the subject property and to extinguish or establish the nonexistence of similar interests of particular persons. In the other the plaintiff seeks to apply what he concedes to be the property of the defendant to the satisfaction of a claim against him.” Hanson v. Denckla, 357 U.S. 235, 246 n. 12, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). It is the second type of quasi in rem jurisdiction that has been found to present the most significant due process concerns, because ''[tjhese are cases where the property which ... serves as the basis for state-court jurisdiction is completely unrelated to the plaintiff's cause of action.” Shaffer, 433 U.S. at 208-09, 97 S.Ct. 2569. In rem jurisdiction under the ACPA most closely resembles what Hanson refers to as a "judgment in rem " or perhaps the first type of "judgment quasi in rem.”
. Various district courts have similarly rejected the broad claim that subsection (d)(2)(C) “was intended as an alternative [basis] for asserting in rem jurisdiction over domain names.” Standing Stone Media, 193 F.Supp.2d at 533; see also Cable News Network, 162 F.Supp.2d at 489 n. 15 (holding that subsection (d)(2)(c) "does not confer in rem jurisdiction”); FleetBoston, 138 F.Supp.2d at 135 (holding that “the situs language in subparagraph (2)(C) does not enable a plaintiff to bring an in rem action in a forum other than one specified in subpara-graph (2)(A)”); cf. Ford Motor Co. v. Greatdomains.Com, Inc., 177 F.Supp.2d 656, 658-59 (E.D.Mich.2001) ("It is unnecessary for the court to determine whether § 1125(d)(2)(C) was intended as an alternative authorization for asserting in rem jurisdiction over domain names, because — assuming that it is — jurisdiction is precluded by the Constitution's due process requirements.”) (citing Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)).
. The legislative history sheds no light on Congress's selection of "or” to conjoin subsections (d)(2)(C)(i) and (d)(2)(C)(ii). Instead, congressional statements simply repeat the "or” without further discussion. See, e.g., 145 Cong. Rec. at S14.714.
. We offer these hypothetical scenarios by way of suggesting that, contrary to Mattel’s contention, subsection (d)(2)(C) would not be rendered meaningless or superfluous by our interpretation of subsection (d)(2)(A). We do not decide today, however, any questions with respect to the scope of subsection (d)(2)(C).
. Potential delays between the filing of a complaint and the depositing of domain-name documentation make such a scenario possible, despite the ACPA’s prohibition of transfers of the domain name pendente lite. See 15 U.S.C. § 1125(d)(2)(D)(i)(II) (stating that a domain-name authority "shall not transfer, suspend, or otherwise modify the domain name during the pendency of the action, except upon order of the court”). In the present case, Mattel filed its action on November 15, 2000. The various domain-name authorities filed registrar’s certificates with the district court on December 4, 2000, December 20, 2000, and February 5, 2001.
. Subsections (d)(2)(A) and (d)(2)(C) of the ACPA thus combine to reaffirm the venerable principle that in rem jurisdiction depends upon a court's initially, but not necessarily continuously, having control of the physical res. See Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 88-89, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992) ("We hold that, in an in rem forfeiture action, the Court of Appeals is not divested of jurisdiction by the prevailing party’s transfer of the res from the district.”). Noting that the in rem rules had their origin in admiralty law, where a court established its jurisdiction by seizure, the Supreme Court found that "the court must have actual or constructive control of the res when an in rem forfeiture is initiated." Id. at 87, 113 S.Ct. 554 (emphasis added); cf. The Palmyra, 25 U.S. (12 Wheat.) 1, 10, 6 L.Ed. 531 (1827) (Story, J.) ("Whenever a stipulation [bond] is taken in an admiralty suit, for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators liable to the exercise of all those authorities on the part of the Court, which it could properly exercise, if the thing itself were still in its custody.”).
. A domain name’s registrar and registry can sometimes be distinct entities. "A 'registry' is the single official entity that maintains all official records regarding registrations in the TLD [top level domain].... A registrar is one of several entities, for a given TLD, that is authorized ... to grant registration of domain names to registrants. The registrants transmit their registration information to the registry.” FleetBoston, 138 F.Supp.2d at 123 n. 2 (quoting David Bender, Computer Law § 3D.03[3], at 3D-56 (updated to 2000)).
. To date, no court has directly addressed whether a defendant domain name in an ACPA action may waive objections to in rem jurisdiction, although the Fourth Circuit has intimated that in rem jurisdiction, like in personam jurisdiction, may be waived under the ACPA. See Porsche Cars N. Am., 302 F.3d at 255-57. The parties and the district court in the present case expressed some uncertainty over whether objections to in rem jurisdiction under the ACPA can be waived. At the preliminary conference, for example, captainbarbie.corn’s counsel argued that Mattel’s interpretation of § 1125(d) incorrectly invoked the “subject matter jurisdiction [sic] of the court and I don’t believe that that is an issue that even if we wanted to we could waive or stipulate to.’’ Later, Judge Cote stated that "[the] issue of subject matter jurisdiction [sic ] is one that I must satisfy myself to.” The