In Rem Actions Under the ACPA and How to Recover a Domain When You Can't Find the Registrant

By Hank FasthoffJuly 4, 2026

A domain registrant may hide behind false information, a privacy service, or an address outside the United States. Those circumstances can prevent a trademark owner from identifying a defendant or establishing personal jurisdiction. The Anticybersquatting Consumer Protection Act addresses that problem through an in rem action against the domain name itself.

An in rem case treats the domain as the defendant for the limited purpose of determining its disposition. The procedure can recover a domain when an ordinary civil action against the registrant isn't available. Its jurisdiction, notice requirements, venue, and remedies differ from an action against a person or company.

When an In Rem Action Is Available

Section 1125(d)(2)(A) imposes a substantive requirement and a jurisdictional requirement. First, the domain must violate a right of the owner of a mark registered with the Patent and Trademark Office or protected under Section 1125(a) or Section 1125(c). An unregistered mark can therefore support an in rem case when federal law protects it against false designation or dilution.

Second, the court must find that the owner can't obtain personal jurisdiction over a person who could have been sued under the ACPA, or that the owner couldn't find that person after the due diligence steps stated in the statute. Either ground can support in rem jurisdiction. The inability to identify the registrant and the inability to obtain personal jurisdiction are separate alternatives.

The jurisdictional inquiry focuses on the registrant who would be the proper defendant. A registrar, registry, host, or privacy service doesn't become a substitute defendant merely because it participates in the domain registration system. The related article on federal ACPA litigation addresses the statute's limits on the available defendant.

The In Rem Provision Covers More Than Cybersquatting

The statutory text refers to any right of the owner of a qualifying mark. That language extends beyond a bad faith cybersquatting claim under Section 1125(d)(1). Depending on the allegations, an in rem complaint may assert infringement under Section 1114 or Section 1125(a), dilution under Section 1125(c), or cybersquatting under Section 1125(d)(1).

Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002), resolved that issue in the Fourth Circuit. The court held that Section 1125(d)(2) authorizes appropriate infringement and dilution claims as well as a bad faith registration claim. It rejected the view that every in rem case requires proof of the ACPA's bad faith intent to profit element.

The distinction affects the complaint. A cybersquatting count requires the elements of Section 1125(d)(1), including bad faith intent to profit. An infringement count instead requires proof of the applicable infringement elements. The in rem provision supplies jurisdiction over the domain, but it doesn't merge the substantive claims into one test.

Where the Case May Be Filed

Section 1125(d)(2)(A) authorizes filing in the judicial district where the registrar, registry, or other domain name authority that registered or assigned the domain is located. The statute lists those locations as alternatives. A plaintiff isn't limited to the registry's district when a qualifying registrar or other authority is located elsewhere.

In Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293 (2d Cir. 2002), the Second Circuit held that Section 1125(d)(2)(C) doesn't create an additional filing district merely because registration documents are deposited with a court. Subsection (C) defines the domain's legal situs after jurisdiction exists. The filing authority comes from subsection (A).

The Eastern District of Virginia receives many in rem domain cases because Verisign operates the dot com and dot net registries from Virginia. ICANN's current dot com registry agreement identifies Verisign as the operator. A venue analysis nevertheless begins with the registrar and registry for the particular domain rather than a general assumption about its extension.

Due Diligence and Service

The due diligence branch of the statute identifies specific steps. The owner sends notice of the alleged violation and the intent to proceed in rem to the registrant at the postal and email addresses the registrant supplied to the registrar. After filing, the owner publishes notice as the court directs. Section 1125(d)(2)(B) states that those actions constitute service of process.

Current RDAP records, historical WHOIS data, registrar records, website contact information, payment records, and communications through a privacy service can document the search for the registrant. The declaration supporting jurisdiction can identify each source checked, each address used, and the result of each contact attempt. That record also helps distinguish a registrant who can't be found from one who can be identified but remains outside the court's personal jurisdiction.

A privacy or proxy service requires careful treatment. Notice sent only to the service may go to the address appearing in public registration data, while the registrar may hold different underlying information. The statutory inquiry asks whether the owner sent notice to the postal and email addresses the registrant provided to the registrar. A complaint benefits from evidence showing how the available records connect the privacy service, registrar, and registrant.

What Happens After Filing

Section 1125(d)(2)(D)(i) controls the domain after the registrar, registry, or other domain authority receives written notice of a filed and stamped complaint. The authority must promptly deposit documents sufficient to establish the court's control over the registration and use of the domain. It also may not transfer, suspend, or modify the domain while the action is pending unless the court orders otherwise.

The statute provides the domain authority limited protection from liability. Under Section 1125(d)(2)(D)(ii), the registrar, registry, or other authority generally isn't liable for injunctive or monetary relief under the paragraph unless it acts in bad faith or with reckless disregard, including a willful failure to obey a court order. That protection concerns the authority's administrative role and doesn't alter the trademark claims against the domain.

The Federal Rules and the court's orders govern the remaining procedure. A complaint ordinarily identifies the domain as the defendant, alleges the substantive trademark violation, establishes the statutory jurisdictional ground, and requests transfer, cancellation, or forfeiture. Publication then follows the court's direction when the owner relies on the inability to find the registrant.

The Available Remedies

Section 1125(d)(2)(D)(i) limits the disposition remedy to forfeiture, cancellation, or transfer of the domain to the mark owner. The court can't award compensatory damages or statutory damages against a domain name. A plaintiff seeking money from the registrant needs an action against a person or entity over whom the court has personal jurisdiction.

Attorney's fees require separate analysis under 15 U.S.C. § 1117(a). In Agri Supply Co. v. Agrisupply.com, 457 F. Supp. 2d 660 (E.D. Va. 2006), the court awarded fees in an exceptional in rem case after finding willful, deliberate, and bad faith conduct. That district court ruling supports the possibility of a fee award without converting the domain into a source of damages.

The remedy limit also affects strategy. An in rem judgment can recover the identified domain, but it can't impose a broad injunction against future registrations by an absent registrant. Discovery, damages, and relief directed at future conduct usually require personal jurisdiction over the responsible person.

Jurisdiction Is Measured When the Complaint Is Filed

The Fourth Circuit addressed the timing question in The Prudential Insurance Company of America v. Shenzhen Stone Network Information Ltd., 58 F.4th 785 (4th Cir. 2023). Prudential filed an in rem action over PRU.COM in Virginia because Verisign operated the registry there and the Chinese owner wasn't subject to personal jurisdiction in the United States. The court held that the ability to obtain personal jurisdiction over the proper defendant is measured when the complaint is filed.

A registrant can't defeat existing in rem jurisdiction by consenting to a different forum after the filing. The court also explained that an agreement to submit to a mutual jurisdiction for a challenge to an adverse UDRP decision doesn't automatically establish personal jurisdiction for an ACPA case. Those are separate proceedings with different jurisdictional questions.

The same opinion confirmed that a later acquisition can qualify as a registration under the ACPA in the Fourth Circuit. PRU.COM existed before Prudential obtained its marks, but the Chinese company acquired the domain years later. The court evaluated that later registration against the rights and intent existing at the time of acquisition.

That rule differs from GoPets Ltd. v. Hise, 657 F.3d 1024 (9th Cir. 2011), where the Ninth Circuit held that registration under Section 1125(d)(1) refers only to the initial registration. The effect of a later transfer can therefore depend on the circuit and the facts.

Comparing an In Rem Case With the UDRP

A UDRP proceeding requires no personal jurisdiction over the respondent. It ordinarily proceeds through written submissions and can transfer or cancel a covered domain. The process can be faster and less expensive when the owner seeks only control of the domain and the record establishes the policy's three elements.

An in rem case may fit when the UDRP doesn't apply to the domain extension, when the record supports a federal infringement or dilution claim outside the UDRP test, or when a court order offers a more suitable procedure. Federal litigation also permits discovery under court supervision, although the absent registrant may limit the practical value of that discovery.

The choice requires an accurate remedy comparison. Both proceedings can transfer or cancel a domain. A UDRP panel can't award fees, and an in rem court can't award compensatory or statutory damages against the domain. A personal action under the ACPA offers the broader monetary and injunctive remedies when the owner can identify and sue the proper defendant.

Evidence and Filing Preparation

The jurisdictional record begins before the complaint. Useful materials include RDAP data, historical WHOIS records, registrar correspondence, privacy service communications, screenshots, archive captures, domain sale listings, mail returns, email delivery records, and evidence identifying the registry and registrar. Each item addresses either the search for the registrant, the filing district, or the underlying trademark violation.

Federal registration can simplify proof, but the statute also recognizes marks protected under Sections 1125(a) and 1125(c). Registration supplies evidentiary presumptions and constructive notice rather than eliminating every dispute over validity, ownership, or scope. An unregistered mark requires a developed record establishing the federal rights that the domain allegedly violates.

The complaint also needs a precise remedy. Transfer places the registration with the owner, cancellation returns it to the available pool, and forfeiture removes the registrant's interest subject to the court's order. Most owners seeking control of the domain request transfer and provide the registrar or registry information needed to implement it.

An in rem action solves a specific jurisdictional problem. A federal court can exercise authority over the domain when the proper defendant can't be found or sued, while the available relief remains confined to the domain and any fee award the law permits. The strength of the filing depends on a documented jurisdictional record, the correct district, and proof of the substantive trademark right at issue.