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

By Hank FasthoffJuly 4, 2026

Cybersquatters frequently conceal their identities. They register domain names using aliases, provide false contact information to registrars, hide behind privacy or proxy registration services, and operate from jurisdictions where U.S. courts cannot reach them. When a trademark owner cannot identify the registrant or cannot establish personal jurisdiction over the registrant in a U.S. court, the standard ACPA claim under 15 U.S.C. § 1125(d)(1) is unavailable. Congress anticipated this problem and included an in rem provision in the ACPA that allows the trademark owner to file suit against the domain name itself, as property, rather than against the person who registered it.

When In Rem Jurisdiction Is Available

Under 15 U.S.C. § 1125(d)(2)(A), a trademark owner may file an in rem civil action against a domain name if two conditions are satisfied.

First, the domain name must violate a right of the owner of a mark registered in the Patent and Trademark Office or protected under Section 43(a) (trademark infringement/unfair competition) or Section 43(c) (dilution) of the Lanham Act.

Second, the trademark owner must establish one of two jurisdictional predicates. Either the owner is not able to obtain in personam jurisdiction over a person who would have been a defendant in a standard ACPA action under paragraph (d)(1), or the owner through due diligence was not able to find a person who would have been a defendant.

In rem jurisdiction under the ACPA is a fallback mechanism. It exists because the alternative, allowing cybersquatters to escape liability by hiding their identity or locating themselves outside U.S. jurisdiction, would have rendered the ACPA ineffective against the most egregious offenders. A trademark owner who can identify and sue the registrant in personam should do so, because in personam actions provide a wider range of remedies.

Where to File

An in rem action is 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. 15 U.S.C. § 1125(d)(2)(A).

For .com, .net, and several other TLDs, Verisign operates the registry from Reston, Virginia, which falls within the Eastern District of Virginia. Because Verisign is the registry for the most commercially significant TLDs, the Eastern District of Virginia has become the de facto venue for in rem ACPA actions involving .com and .net domain names, regardless of where the registrar is located.

In Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214 (4th Cir. 2002), the Fourth Circuit upheld in rem jurisdiction in the Eastern District of Virginia over 60 domain names incorporating variations of the "Harrods" trademark. Harrods, the London-based retailer, could not obtain personal jurisdiction over the registrant, an Argentinian company with insufficient contacts with the United States. Because the domain names were registered through a registry located in Virginia, in rem jurisdiction was proper, and the domain names' registration in the United States provided the nexus necessary to satisfy due process.

In Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293 (2d Cir. 2002), the Second Circuit clarified that in rem jurisdiction under the ACPA lies only in the judicial district where the registrar, registry, or other domain name authority is located, and that the plaintiff cannot create jurisdiction merely by having domain name registration documents deposited with the court in another district.

Due Diligence Requirements

When the trademark owner relies on the second jurisdictional predicate, the inability to find the registrant, the statute requires a showing of due diligence. Under 15 U.S.C. § 1125(d)(2)(A)(ii)(II), the trademark owner must demonstrate that it was unable to find the person who would have been a defendant after (a) sending a notice of the alleged violation and intent to proceed to the registrant at the postal and email address provided by the registrant to the registrar, and (b) publishing notice of the action as directed by the court.

In practice, due diligence requires more than sending a single letter to the WHOIS address. Trademark owners should search publicly available databases, review the domain's registration history through WHOIS and RDAP records, attempt to contact the registrant through any email addresses or contact forms on the website associated with the domain, and request registrant information from the registrar (which may require a court order if the registrant uses a privacy service).

If the registrant uses a privacy or proxy registration service, the privacy service's address is typically the only contact information available in the WHOIS record. Courts have generally held that sending notice to the privacy service satisfies the notice requirement, but trademark owners should also attempt to contact the underlying registrant through the privacy service's relay mechanism, if one exists.

What Happens After Filing

Upon receipt of a written notification of a filed, stamped copy of the complaint, the domain name registrar, registry, or other domain name authority must expeditiously deposit with the court documents sufficient to establish the court's control and authority over the disposition of the registration and use of the domain name. 15 U.S.C. § 1125(d)(2)(D)(ii). Once those documents are deposited, the domain name is under the court's control, and the registrar must not transfer, suspend, or otherwise modify the registration during the pendency of the action except by court order.

Service of process in an in rem action follows the court's direction. Because the action is against the domain name rather than a person, traditional service rules do not apply in the same way. Courts typically require publication of notice and service on the registrar.

Remedies

Remedies in an in rem ACPA action are limited. Under 15 U.S.C. § 1125(d)(2)(D)(i), the court may order the forfeiture or cancellation of the domain name or the transfer of the domain name to the owner of the mark. Monetary damages, including statutory damages under 15 U.S.C. § 1117(d), are not available in an in rem action.

One exception exists for attorney's fees. In Agri-Supply Company v. Agrisupply.com, 457 F. Supp. 2d 660 (E.D. Va. 2006), the court held that attorney's fees could be awarded in an in rem ACPA action on the grounds that the defendant's conduct was willful, deliberate, and in bad faith. While fee awards in in rem actions are uncommon, the possibility exists when the cybersquatter's conduct is egregious.

A trademark owner who needs monetary damages, injunctive relief beyond domain transfer, or the ability to prevent the defendant from registering additional infringing domain names must pursue those remedies through an in personam ACPA action.

The Relationship Between In Rem and In Personam Jurisdiction

In rem jurisdiction under the ACPA supplements rather than replaces in personam jurisdiction. 15 U.S.C. § 1125(d)(4) provides that the in rem jurisdiction established under paragraph (2) is in addition to any other jurisdiction that otherwise exists, whether in rem or in personam.

A question that has recurred is whether in rem jurisdiction is destroyed if the registrant's identity is revealed after the complaint is filed. In the Fourth Circuit, the answer is no. In Prudential Insurance Co. of America v. Shenzhen Stone Network Information Ltd., 58 F.4th 54 (4th Cir. 2023), the court held that in rem jurisdiction is properly assessed at the time the complaint is filed and cannot be destroyed by the later identification of a defendant over whom personal jurisdiction might exist. Allowing post-filing jurisdictional challenges based on newly revealed identity information would incentivize cybersquatters to conceal their identities until after a complaint is filed and then reveal themselves to defeat jurisdiction.

UDRP as an Alternative to In Rem Actions

For many of the disputes that would otherwise require an in rem ACPA action, a UDRP proceeding at WIPO or another provider may be the better option. UDRP proceedings do not require personal jurisdiction over the respondent. They are conducted entirely in writing, with no appearance requirement. They cost $1,500 for a single-panelist case and produce a decision in approximately 45 to 60 days.

An in rem ACPA action involves federal court filing fees, attorney's fees, the due diligence process, service by publication, and a litigation timeline measured in months rather than weeks. For a trademark owner whose only objective is to recover the domain name, the UDRP is typically faster, cheaper, and procedurally simpler.

In rem ACPA actions become the right tool when the UDRP is unavailable (as for certain ccTLDs not covered by the UDRP), when the respondent has a history of contesting UDRP decisions in court, when attorney's fees are warranted by egregious conduct, or when the trademark owner wants a federal court judgment that carries precedential weight and can be enforced through contempt proceedings.

Practical Considerations

Document your due diligence before filing. Courts require a showing that you attempted to locate the registrant and could not. Preserve copies of WHOIS searches, correspondence sent to the registrant's listed addresses, responses (or non-responses) from privacy services, and any other investigative steps.

File where the registry is located, not where the registrar is located, if the two differ. For .com and .net domains, the Eastern District of Virginia (Verisign's location) provides the most established body of in rem ACPA case law.

Consider whether you also have a viable in personam claim. If you can identify the registrant and establish personal jurisdiction, an in personam action provides broader remedies, including statutory damages and injunctive relief. In rem jurisdiction is a tool for situations where the registrant cannot be found or reached, not a substitute for personal jurisdiction when personal jurisdiction is available.

Register your trademark before filing. While the ACPA protects both registered and unregistered marks, a federal registration creates a presumption of validity, establishes nationwide constructive notice of the mark, and eliminates potential disputes about whether the mark is protectable.