This case involves a dispute over the simultaneous use of two similar Internet domain names by two separate entities. Defendants-appellants Northern Lights Club, Jeff Burgar and 641271 Alberta Ltd. (collectively “Northern Lights” or “defendants”) appeal a preliminary injunction entered by the district court requiring the posting of a specified disclaimer on their World Wide Web site’s portal page. The court entered the injunction after finding that plaintiff-appellee Northern Light Technology, Inc. (“Northern Light” or “plaintiff’) was likely to prevail on the merits of its state and federal trademark claims and its claim under the Anticybers-quatting Consumer Protection Aсt, 15 U.S.C. § 1125(d) (“ACPA”).
Defendants assert three bases for relief in this interlocutory appeal: (1) that the district court lacks personal jurisdiction, and hence the power to enjoin them; (2) that the district court erred in concluding that the plaintiff was likely to succeed on the merits of its claims; and (3) that the injunction currently in place is overly broad and consequently infringes their free-speech rights. Finding that the district court properly acquired jurisdiction over defendants when their agent was served with process within the forum state, and discerning no basis for disturbing the district court’s determination on the likely success of plaintiffs suit, we uphold the district court’s issuance of a preliminary injunction. And because defendants only obliquely pressed their First Amendment argument before the district court, we decline to decide the issue for purposes of this appeal.
I. Background
The facts of this case are extensively chronicled in the district court’s opinion,
see Northern Light Tech., Inc. v. Northern Lights Club,
Defendant Jeff Burgar, a resident of High Prairie, Alberta, Canada, is the pres *59 ident and principal shareholder of 641271 Alberta, Ltd., an Alberta corporation that owns the northernlights.com domain name. Burgar, a self-described “Internet entrepreneur,” has, since the mid-1990s, registered thousands of “catchy” domain names i.e., Internet addresses appropriating, in identical or slightly modified form, the names of popular people and organizations. He is also the president of Northern Lights Club, an unincorporated association with a listed address in Las Vegas, Nevada. While Northern Lights Club’s stated mission is to bring together devotees of the Northern Lights, or aurora borealis, including businesses that take them name from the famous celestial phenomenon, Burgar’s testimony indicates that the club has no actual individual members.
In October 1996, approximately one month after plaintiff registered its north-ernlight.com website, Burgar, on behalf of Northern Lights Club, registered the northernlights.com domain name with NSI. 3 Soon after registration, Burgar licensed the name to FlairMail, a vanity email service that he manages and that is owned by a local Alberta newspaper. 4 Burgar “believes” that this newspaper is owned by his wife. Under this arrangement with FlairMail, defendants offered email accounts under the northern-lights.com domain name that users could access through some other website, such as flairmail.cоm, although Internet users who attempted to visit the northern-lights.com page on the World Wide Web would find that no such site existed. 5
The two similar domain-name registrations enjoyed a peaceful coexistence until March 2, 1999, when a USA Today story on Internet search engines erroneously identified plaintiffs website as northern-lights.com. After ascertaining that defendants were the owners of this domain name, plaintiffs marketing director contacted Burgar to find out whether defendants might be interested in selling it. The parties exchanged a series of proposals and counterproposals by e-mail over a two-month period but ultimatеly no sales or licensing agreement was consummated. Soon thereafter, in April 1999, defendants posted an active page on the northern-lights.com World Wide Web site. Visitors to the site saw, among other things, a site-search function near the top of the screen that enabled users to perform a search of the northernlights.com site for specific words or phrases, as well as links to Flair-Mail and other members of the “Northern Lights Community.” Plaintiffs Web site was placed third in the list of the Northern Lights Community “Business Listings.” 6 Plaintiff had not agreed to this listing.
On July 14, 1999, plaintiff sent Burgar a cease-and-desist letter, demanding that the northernlights.com site be deactivated. Defendants chose not to respond to this letter. Fifteen days later, plaintiff asked NSI to strip defendants of the northern-lights.com domain name based on the similarity of their respective marks, but NSI declined, citing the one-letter discrepancy between the name of defendant’s website and plaintiffs trademark. On August 6, 1999, plaintiff filed the instant lawsuit under federal and state theories of unfair *60 competition, trademark infringement, and trademark dilution. In its complaint, plaintiff sought both a temporary restraining order and a preliminary injunction. In December 1999, plaintiff amended its complaint to add a claim under ACPA (which had been enacted into law less than one month earlier) and to abandon its federal trademark-dilution claim and its state-law claims of unfair competition and trademark dilution.
Moments before the district court hearing on September 1, 1999 to consider the merits of plaintiffs claims and the court’s personal jurisdiction over defendants, plaintiffs agent physically served process upon Burgar, who had traveled voluntarily to Boston from Alberta to witness the proceedings and to make himself available for testimony if needed. Although the hearing itself focused largely on the convoluted issues of personal jurisdiction arising from Internet activities, it also touched upon the merits оf plaintiffs request for preliminary injunctive relief. At the end of the hearing, the district court indicated that it would issue a temporary restraining order modifying the content of the north-ernlights.com site to prevent further public confusion, and solicited advice from both parties as to the appropriate substance of that order.
True to its word, the district court imposed the TRO the following day, stating that Northern Light had successfully demonstrated probable personal jurisdiction, that it would be likely to succeed in its trademark-infringement suit, and that the balance of hardships and the public interest favored temporary relief. The court оrdered that defendants remove all content from the northernlights.com site and post in its place a blacked-out screen containing only an image of the aurora boreal-is and links to three websites: (1) flair-mail.com (where users could access their northernlights.com e-mail accounts); (2) plaintiffs northernlight.com site; and (3) the content page that formerly existed at northernlights.com, to be described, for purposes of the link, as “BUSINESSES THAT ARE LISTED WITH THE NORTHERN LIGHTS COMMUNITY.” On the same day that this ruling was issued, the parties jointly moved the court for a continuance of “at least 60 days.” In this joint motion, defendants acquiesced in an extension of the restraining order against them until discovery and further hearings in the matter were conducted, and the parties agreed to a schedule governing the completion of discovery and the filing of any additional motions. The court granted this motion, and both parties submitted further motions during this period. After granting several motions for extensions of time, the district court ultimately held hearings on January 19 and 21, 2000 on the personal-jurisdiction issue and the merits of plaintiffs request for preliminary relief.
In its written opinion issued on March 31, 2000, the district court ordered,
inter alia,
that what had become a
de facto
preliminary injunction should remain in place.
7
In so doing, the court began by holding that it had personal jurisdiction over defendants.
8
It determined that plaintiff had satisfied sections 3(c) and 3(d) of the Mаssachusetts Long-Arm Statute,
see
Mass. Gen. Laws ch. 223A, § 3, be
*61
cause defendants had likely caused tor-tious injury to plaintiffs in Massachusetts, both through their acts within the Commonwealth (in the form of their trademark-infringing website) and their regular solicitation of business through acts outside of the Commonwealth (by virtue of,
inter alia,
the site’s “entice[ment]” to users to post material).
See
On the merits of plaintiffs suit, the district court found that, based on the likelihood of confusion between the two websites because of their similar form and funсtion, plaintiffs state and federal trademark-infringement and unfair-competition causes of action would probably succeed. See id. at 109-15, 120. The court further opined that plaintiff was likely to succeed on its ACPA claim, based on the confusing similarity of the two domain names and proof of defendants’ bad-faith intent to profit from plaintiffs northernlight.com mark. See id. at 115-20. On the latter issue, the court reasoned that, although Burgar’s initial reluctance to sell the northernlights.com site and defendants’ uninterrupted use of the northern-lights.com name for vanity e-mail accounts militated against a bad-faith finding, defendants’ historical practice of “targeting trademarked names, creating fictional entities to register them, and offering dubious explanations for the selection of these domain names” ultimately tipped the scales in favor of such a preliminary determination. Id. at 119. Finally, the district court found that plaintiff had established a likelihood of irreparable harm, that the balance of hardships favored the plaintiff, and that the public interest favored the preservation of the preliminary injunction already in place. See id. at 120-21.
On appeal, defendants dispute the district court’s personal-jurisdiction ruling and aspects of its decision regarding the likelihood of рlaintiffs success on the merits. Defendants also pursue their argument, not expressly considered by the district court, that the present injunction unduly burdens their First Amendment rights.
II. Personal Jurisdiction
Defendants first challenge the injunction entered by the district court on the ground that the court was without personal jurisdiction to order such a remedy. At each stage of the proceedings, the parties have contested whether defendants’ activities, both in terms of the content of their website and their discussions with the plaintiff regarding a potential business venture, meet the personal-jurisdiction criteria of the Massachusetts Long-Arm Statute and the requirements of due proсess. Plaintiff also posited a more conventional basis for personal jurisdiction in the district court namely, the service of process effected upon Burgar just prior to the September 1, 1999 preliminary injunction hearing. We afford plenary review to the district court’s determination of personal jurisdiction, and may affirm its judgment for any independent reason supported by the record.
See, e.g., Phillips Exeter Acad. v. Howard Phillips Fund, Inc.,
The district court expressly declined to consider the validity of personal jurisdiction based on physical service of process.
See
Although they do not specifically ask for process immunity, defendants’ argument against personal jurisdiction essentially boils down to a request that Burgar be deemed immune from service of process since, at the time he was served, he was present in Massachusetts only for the purpose of attending a personal-jurisdiction hearing in this lawsuit. This argument enjoys some measure of historical pedigree, albeit in a related context. Long before the Supreme Court in
Burnham
affirmed that personal jurisdiction can be sustained against a defendant solely on the basis of his presence in the forum state at the time of service of process, it had recognized that
some
parties temporarily in the forum state enjoy immunity from service by virtue of their status as participants in ongoing litigation. For instance, in
Lamb v. Schmitt,
[T]he due administration of justice requires that a court shall not permit interference with the progress of a cause pending before it, by the service of process in other suits, which would prevent, or the fear of which might tend to discourage, the voluntary attendance of those whose presence is necessary or convenient to the judicial administration in the pending litigation.
Id.
at 225,
Accompanying the courts’ repeated recognition of the validity of the party/witness immunity exception, however, has been a persistent acknowledgment of the exception’s limitations. The
Lamb
Court itself noted that, because the privilege exists for the convenience of the district court in its exercise of judicial administration, rather than to protect the individual seeking to avoid service of process, courts enjoy the discretion to confer (or deny) immunity in such instances.
See
Turning to the facts of this case, several features of defendants’ litigation posture counsel against a finding that Burgar is entitled to process immunity. First, and most apparent, is the fact that defendants have never asked the district court for such immunity on behalf of Burgar, either prior to or following the hearing at which Burgar was served with process. In lieu of a specific request for immunity, defendants instead have asked this court to fashion a broad, per se rule precluding the еxercise of personal jurisdiction whenever the served individual is in the jurisdiction to attend litigation-related proceedings that pertain to him or her. In light of the admonitions in Lamb and other cases that process immunity should be meted out sparingly, we reject this suggestion. Moreover, the circumstances surrounding the service of process on Burgar are not those that would ordinarily favor a finding of immunity even in a case where it had been timely requested. Specifically, Bur-gar voluntarily entered into Massachusetts to attend proceedings as a spectator in the same case in which he was served with process. While we need not decide the issue, it seems apparent that under these facts, the district court would have faced a relatively heavy presumption against granting such immunity if it actually had been sought by Burgar.
For these reasons, we hold that the district court properly exercised personal jurisdiction over defendants in this case. 10 *64 Based on this determination, we need not reach the alternate bases for personal jurisdiction discussed in the district court’s opinion.
III. Plaintiff’s Likelihood of Success on the Merits
Defendants’ second claim in this appeal, which goes to the merits of plaintiffs suit, is that the preliminary injunction should be dissolved because it is premised on erroneous findings by the district сourt. Specifically, defendants claim that the court erred as a matter of fact in determining that Northern Lights manifested a bad-faith intent to profit from plaintiffs mark, and as a matter of law in concluding that ACPA should be applied retroactively to encompass defendants’ behavior prior to the enactment of the statute.
A. Defendants’ Bad Faith
Defendants vehemently contest the district court’s finding that the registration and maintenance of the northern-lights.com domain name represented a bad-faith effort to profit from plaintiffs Northern Light trademark. The issue of bad faith is principally relevant to the merits of plaintiffs suit insofar as “bad faith intеnt to profit from [another’s] mark” constitutes an essential element of the cause of action under ACPA. 15 U.S.C. § 1125(d)(l)(A)(i). In this case, however, it also relates, albeit tangentially, to plaintiffs trademark-infringement claim. This is so because the district court’s finding with respect to defendants’ intent in adopting the Northern Lights mark, which the court rendered while considering one of the eight factors under the “likelihood-of-confusion” test for trademark infringement,
see, e.g., I.P. Lund Trading ApS v. Kohler Co.,
On appeal, defendants claim that then-conduct did not meet the statutory guidelines for a finding of bad faith, and that even if it did, the subjective and objective reasonableness of their actions should shield them from liability. Defendants stress that their mere registration of multiple domain names does not, by itself, indicate that they were acting in bad faith with regard to any of their individual registrations or website uses. Defendants also assert that the statements of Burgar havе been taken out of context by the district court, and have been unfairly used to establish Northern Lights’s bad faith.
Along with its inclusion of bad faith among the essential elements of the ACPA cause of action, Congress provided nine nonexhaustive guideposts that courts may use to divine whether or not bad faith exists. See 15 U.S.C. §§ 1125(d)(l)(B)(i)(I)-(IX). In addition, the statute provides an “escape clause” to those whose conduct would otherwise constitute bad faith if the potential infringer “believed and had reasonable grounds to believe that the use of the domain name was a fair use or otherwise lawful.” Id. § 1125(d)(l)(B)(ii). In this case, the district court determined that defendants’ myriad exрlanations for their use of the northernlights.com site e.g., as an experimental new business model, as a site for aurora borealis admirers, and as a compilation of businesses that contain the phrase “Northern Lights” undermined Northern Lights’s claim of subjective belief in fair use, and hence their entitlement to the “escape clause” of § 1125(d)(1)(B)(ii). See 97 F.Supp.2d at *65 118-19. Additionally, the court concluded that the defendants’ numerous registrations of domain names containing the trademarks of others, which defendants accomplished in some cases by creating fictional “fan clubs” so that they could present a mantle of legitimacy in their registration requests to NSI, represented powerful evidence of defendants’ bad faith in operating the northernlights.com site. This conclusion of bad faith was reinforced, according to the district court, by defendants’ history of disregarding cease- and-desist letters from legitimate trademark owners, and their apparent openness to sell the northernlight.com registration to the plaintiff at the right price. Id. at 119-20.
Based on our review of the record, we see no clear error in the district court’s finding that defendants will likely be found to have acted in bad faith in operating the northernlights.com site. 11 Although defendants are correct in asserting that their multiple registrations аlone are not dispos-itive of the bad-faith issue, their well-established pattern of registering multiple domain names containing famous trademarks, such as rollingstones.com, evin-rude.com, and givenchy.com, has been made highly relevant to the determination of bad faith by the list of factors in ACPA. See 15 U.S.C. § 1125(d)(1)(B)(i)(VIII) (noting as relevant factor “the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names”). Those facts are not clearly trumped by facts favoring defendants’ side of the story, such as their use of northernlights.com as an email domain name for several years prior to thе dispute with the plaintiff and Bur-gar’s initial resistance to the plaintiffs efforts to acquire defendants’ domain-name registration. The district court’s finding that defendants were not entitled to the “escape clause” also is not clearly erroneous; as the court found, defendants’ oft-changing explanations for the purpose of the northernlights.com website evince a lack of subjectiye belief in the domain name’s fair use.
Based on defendants’ apparent modus operandi of registering domain names containing the famous trademarks of others in the hope that the famous trademark holder will be willing to pay to reclaim its intellectual-property rights, the district court reasonably concluded that defendants acted according to script in this case. 12 Accordingly, we determine that the district court did not err in finding that defendants will likely be found to have acted in bad faith in operating their north-ernlights.com website.
B. Retroactive Application of ACPA
Defendants also ask that we review the district court’s legal determination that the retroactive application of ACPA to the facts of this case is permissible.
13
After reviewing the district court opinion and
*66
the parties’ briefs, however, we find it unnecessary to reach this issue, as even if we were to decide the matter in defendants’ favor, it would not provide an adequate basis for dissolving the injunction. This is so because the district сourt expressly stated that its decision to impose a preliminary injunction rested principally upon its finding that Internet users would likely be confused by the concomitant existence of the northernlight.com and north-ernlights.com marks.
See
In sum, we conclude that defendants have identified no basis for overturning the preliminary injunction already in place. We therefore affirm its issuance by the district court.
IV. First Amendment Overbreadth of the Injunction
Defendants argue that the scope of the preliminary injunction violates the First Amendment. We need not, howеver, consider that issue here, for although it may have been raised below, defendants did no more than obliquely refer to the issue when the district court held the critical hearing, and subsequently took part in the framing of the preliminary injunction. Because we do not find waiver, the issue can be argued in the trial on the merits.
Conclusion
Because the district court obtained personal jurisdiction over defendants when Burgar was served with process while in the forum state, we affirm, albeit on different grounds, the court’s personal-jurisdiction finding. We find no basis for disturbing the court’s determination of likelihood of success on the merits of plaintiffs suit, and therefore affirm thоse portions of the district court’s opinion. Finally, while not precluding further consideration of the First Amendment issue at trial, we decline to resolve defendants’ free-speech challenge to the scope of the injunction at this time.
Affirmed. Costs to appellee.
Notes
. As they are commonly used today, Internet domain names serve two principal functions: (1) providing the addresses for hypertext markup language ("HTML”) sites on the World Wide Web, and (2) permitting the dissemination of e-mail accounts with a common suffix that reflects the identity of the accounts' proprietor.
. The PTO issued plaintiff a registered trademark for "Northern Light” on February 23, 1999.
. Plaintiff does not allege that defendants had actual knowledge of the northernlight.com registration when they registered the north-ernlights.com domain name.
. Vanity e-mail permits a subscriber to choose both the user name and the domain name for their e-mail address. To use as an example the service offered by defendants, an admirer of the aurora borealis named John Doe could choose the vanity e-mail address "John.Doe@northernlights.com."
. The district court found, at the time of its March 2000 opinion, that approximately 112 individuals used
the
northernlights.com domain name as part of their vanity e-mail address.
See
. Plaintiff asserts that it received approximately 300 refеrrals per day from defendants' site about the time that the northern-lights.com site went online, and that this number later increased to several thousand referrals per day.
. The record does not clearly reveal when the TRO became a preliminary injunction. At some point following the submission of their joint motion for continuance, the parties (and the district court) started describing the TRO as a preliminary injunction. Furthermore, in its written opinion, the district court stated that the preliminary injunction already in place would not be modified. In any event, the present appeal clearly is from a preliminary injunction.
. The district court noted that its decision was responsive to a plethora of pretrial motions pending before it, including motions to dismiss for lack of personal jurisdiction and for failure to state a claim; plaintiff’s initial motion for a preliminary injunction; defendants’ motions for reconsideration of the temporary relief that had already been ordered; and the parties' motions to compel discovery and to impose sanctions.
See
. In their brief, defendants cite to other cases, such as
American Centennial Ins. Co. v. Handal,
. We believe that the service of process effected upon Burgar also conferred personal jurisdiction over the other defendants. Bur-gar serves as the president of both Northern Lights Club, an unincorporated association, and 641271 Alberta, Ltd., a foreign corporation. See Fed.R.Civ.P. 4(h)(1) (permitting personal service of process upon officers of unincorporated associations and foreign corporations).
In all events, defendants have attacked the efficacy of service of process only in general. They have not attacked its efficacy visa-vis particular defendants. Consequently, we deem waived any possible argument that personal service upon Burgar was ineffectual as a means of bringing Northern Lights Club and/or 641271 Alberta, Ltd. before the court.
. The district court found that defendants’ posting of a website at northernlights.com, rather than their initial domain-name registration, was the act that constituted bad-faith intent to profit in this case.
See
. Defendants claim that since they expected no revenue stream from the content on the northernlights.com website, they could not have acted with a bad-faith intent to profit. Based on their past practices, however, it is reasonable to conclude that defendants harbored a broader, more long-term notion of "profit.” Instead, defendants likely hoped to cash in on the confusion surrounding the sponsorship of the websites by finding famous trademark holders willing to pay defendants to end the diversion of Internet traffic from their website to defendants’ sitеs.
.As we recently noted in
Hasbro, Inc. v. Clue Computing, Inc.,
. As the district court noted, the "likelihood of confusion" test of trademark infringement is "more comprehensive” than the "identical or confusingly similar" requirement of ACPA, as it requires considering factors beyond the facial similarity of the two marks.
. Defendants do claim that there were other “grossly unfair factual errors by the trial court" which constituted "an egregious result-driven pattern of prejudice" against them. But they have failed to specify those errors in their appellate briefs.