Affirmed in part, dismissed in part, and vacated and remanded in part by published opinion. Judge MOTZ wrote the opinion, in which Chief Judge WILKINSON and Senior Judge BALDOCK joined.
OPINION
* Porsche Cars North America, Incorporated and Dr. Ing. h.c.F. Porsche AG, a German company, brought this in rem action against certain Internet domain names related to the name “Porsche” or another Porsche trademark, seeking an injunction that would transfer the right to use the domain names. The Porsche companies contend that some of the domain names violated their rights under the Anti-cybersquatting Consumer Protection Act, 15 U.S.C.A. § 1125(d)(1) (West Supp.2002), and that all of the domain names diluted their trademark in contravention of 15 U.S.C.A. § 1125(c) (West 1998 & Supp.
I.
The Internet is an “international computer network of both Federal and non-Federal interoperable packet switched data networks”: a network of computers all around the world through which people communicate information to each other. 47 U.S.C.A. § 280(f)(1) (West 2001); see also 15 U.S.C.A. § 1127 (West Supp.2002) (incorporating this definition for trademark law); 47 U.S.C.A. § 231(e)(3) (West 2001) (providing an alternative definition for a different statutory provision).
Federal law defines a domain name as “any alphanumeric designation which is registered with or assigned by any domain name registrar, domain name registry, or other domain name registration authority as part of an electronic address on the Internet.” 15 U.S.C.A. § 1127. Also known colloquially as a “Web address,” a domain name is a combination of characters that a person types into a computer software program called a browser, in order to gain access to a Web site, a set of computer files through which another person provides information over the Internet. See Sporty’s Farm L.L.C. v. Sportsman’s Mkt, Inc.,
A person seeking the right to use a particular domain name may register with one of a number of registrar organizations that assign domain names on a first-come first-served basis. See id. at 493. Many consumers look for a given company’s Web site by checking to see if the company uses a domain name made up of the company’s name or brand name with the suffix “.com.” A person might, for example, look for information about Baltimore’s major-league baseball team by typing “www.bal-timoreorioles.com”. For this reason, “companies strongly prefer that their domain name be comprised of the company or brand trademark and the suffix.com.” Id.; see also Brookfield Communications, Inc. v. West Coast Entm’t Corp.,
On January 6, 1999, the two Porsche companies (collectively “Porsche”) filed a trademark-dilution action under 15 U.S.C.A. § 1125(c) against 128 domain names related to Porsche trademarks. Porsche alleged that consumers’ discovery on the Internet of domain names including Porsche’s trademarks or their variants diluted its marks in violation of § 1125(c). In its complaint, Porsche sought only one form of relief — “[t]hat the Domain Names be preliminarily and permanently transferred ... to Porsche” — and asserted a single basis for in rem jurisdiction — 28 U.S.C.A. § 1655.
Few of the domain names offered any defense. The district court entered default judgments against many of them, and Porsche voluntarily dismissed its claims against many others. Five domain names did remain in the action. Christian Holm-green, a British citizen, had registered two of them: porsche.net and porscheclub.net (collectively “the British domain names”). Alan J. Martin, a resident of the state of Georgia who did business under a trade name, had registered three others: por-schelease.com, porscheloan.com, and por-
On motion by the British domain names, the district court dismissed the complaint in its entirety on the ground that 28 U.S.C.A. § 1655 provided no in rem jurisdiction for the asserted trademark-dilution claims. See Porsche Cars N. Am., Inc. v. Porsch.Com,
While Porsche’s appeal from the dismissal order was pending in this court, Congress enacted the Anticybersquatting Consumer Protection Act (ACPA or “the anticybersquatting statute”), authorizing in rem actions against domain names in certain circumstances. Pub.L. No. 106-113, 113 Stat. 1501, 1501A-545 (1999), codified in relevant part at 15 U.S.C.A. § 1125(d). We therefore vacated the district court’s order dismissing the case and remanded for consideration of the ACPA, without reaching the question of whether § 1655 provided a basis for in rem jurisdiction for the trademark-dilution claims asserted by Porsche. See Porsche,
On August 11, 2000, Porsche amended its complaint, adding anticybersquatting claims under 15 U.S.C.A. § 1125(d)(1) and reiterating its trademark-dilution claims. A month later, the British and Georgia domain names moved to dismiss the amended complaint. On December 29, 2000, the district court again dismissed the trademark-dilution claims for lack of jurisdiction under § 1655. The court also dismissed the anticybersquatting claims against the Georgia domain names because it found that in personam jurisdiction was available against Martin.
The in rem anticybersquatting claims against the British domain names have a more complex procedural history. On December 29, 2000, the court ruled that the amended complaint did not allege sufficient facts to demonstrate that Porsche had exercised due diligence in seeking to obtain in personam jurisdiction over Holm-green, and so dismissed the in rem anticy-bersquatting claims against the British domain names. However, this dismissal was without prejudice, permitting Porsche to file a second amended complaint to plead specifically the efforts it had made to obtain personal jurisdiction over Holmgreen. Porsche then did file a second amended complaint, which the British domain names again moved to dismiss, asserting that Porsche still had not alleged facts sufficient to demonstrate a diligent search for Holmgreen’s contacts with the United States.
On February 23, 2001, after oral argument, the district court denied the motion to dismiss the second amended complaint, finding that Porsche had exercised due diligence and had satisfactorily demonstrated a lack of personal jurisdiction over Holmgreen within the United States. The court explained that given “[t]he reality of [Porsche’s] counsel’s research efforts and the fact that all parties involved have known for almost two years that Holm-green has no contacts with the United States,” it was “satisfied that due diligence has been exerted and that personal jurisdiction is lacking through[out] the United States.” The court explicitly “found that in rem jurisdiction [under the ACPA] is proper.”
On July 13, 2001, three days prior to the scheduled trial date, the British domain names notified the district court that Holmgreen had decided to submit to personal jurisdiction in the-United States District Court for the Southern District of California. The British domain names then moved to dismiss the in rem anticy-bersquatting claims against them, arguing
Although the district court expressed frustration with Holmgreen’s eleventh-hour decision to submit to personal jurisdiction in federal court in California, it ruled that this decision did divest it of in rem jurisdiction. For this reason, the district court dismissed Porsche’s anticybers-quatting claims against the British domain names. The court characterized its dismissal as “without prejudice,” but ruled that as long as in personam jurisdiction over Holmgreen was available in federal court in California, Porsche could not proceed in rem against the domain names in this action.
Porsche appeals from the order dismissing, without prejudice, its anticybersquat-ting claims against the British domain names and from the order dismissing, with prejudice, its trademark-dilution claims against the British and the Georgia domain names.
II.
The anticybersquatting statute authorizes in rem jurisdiction over a domain name if personal jurisdiction over the registrant of the domain name is unavailable. In relevant part, the ACPA provides:
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 .. 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 civil defendant [in a suit].
15 U.S.CA. § 1125(d)(2)(A) (West Supp. 2002).
On February 23, 2001, the district court found that it had jurisdiction over the British domain names under the ACPA.
A.
The British domain names contend, as the district court agreed, that “once there is in personam jurisdiction, you can no longer proceed in rem” — no matter when the in personam jurisdiction arises.
We recognize at the outset that the structure of the ACPA undoubtedly expresses Congress’s preference for in per-sonam suits: the holder of a trademark must convince the court that in personam jurisdiction over a person is unavailable before an ACPA in rem action may proceed. See 15 U.S.C.A. § 1125(d)(2)(A); see also Alitaliar-Linee Aeree Italiane S.p.A. v. Casinoalitalia.com,
1.
Because none of the relatively few ACPA cases to date offer any kind of support for the British domain names’ position, they rely exclusively on non-ACPA cases.
Specifically, the domain names look to non-ACPA cases that state the unremarkable proposition that subject-matter jurisdiction cannot be waived. See, e.g., Lovern v. Edwards,
Even if we accepted that the parties’ inability to waive subject-matter jurisdiction should inform our analysis of in rem jurisdiction, we can find no support for the separate proposition that the conditions that create subject-matter jurisdiction must necessarily persist throughout the life of a case. For example, it is black-letter law that the conditions that create diversity jurisdiction, one well-known basis for subject-matter jurisdiction, need not survive through the life of the litigation. Rather, a court determines the existence of diversity jurisdiction “at the time the action is filed,” regardless of later changes
Similarly, although federal courts lack subject-matter jurisdiction over a case involving only state-law claims in the absence of diversity jurisdiction, a court may retain supplemental jurisdiction over purely state-law claims after resolving a claim that initially gave it subject-matter jurisdiction over the case. See 28 U.S.C.A. § 1367(c)(3) (“The district court[ ] may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction.” (emphasis added)); Rosado v. Wyman,
In any event, personal jurisdiction, rather than subject-matter jurisdiction, seems far more analogous to in rem jurisdiction. See United States v. 51 Pieces of Real Property,
Furthermore, in case law considering objections to in rem jurisdiction other than the one presented in our case, we have found no support for the British domain names’ contention. Rather, in admiralty and civil forfeiture cases, for years courts have held that objections to in rem jurisdiction may be waived. Republic Marine,
Considering another non-ACPA condition of in rem jurisdiction in the forfeiture context, moreover, the Supreme Court has rejected an argument similar to that of the British domain names. Although at the beginning of a civil forfeiture case the res must be located in the jurisdiction that asserts authority over it, the Court has
True, the Republic National Bank Court was considering a challenge to in rem jurisdiction by the party that had initiated the action, distinguishing our case in part — but the Court also emphasized that the party challenging jurisdiction had itself chosen to move the res, see id. at 82-83, 88-89,
In sum, the case law appears to be void of support for the British domain names’ position, and the Supreme Court’s statements in Republic National Bank seriously undermine their theory as a general proposition.
2.
Nor does the anticybersquatting statute suggest any reason to treat ACPA in rem jurisdiction differently. The statute permits “the owner of a mark” to “file” an in rem action against a domain name if “the court finds that the owner ... is not able to obtain in personam jurisdiction over a person who would have been a civil defendant” in an action concerning that domain name. 15 U.S.C.A. § 1125(d)(2)(A)(ii)(I). It thus calls for a finding early in the case as to whether in rem jurisdiction exists, implying that a court should address any objections to in rem jurisdiction before making that finding. (Although an excessively literal reading would require this finding before a party may “file” an action at all, such a reading produces an absurd result. See Alitalia,
Of course, as the British domain names point out, the ACPA requires such a finding whether or not a defendant formally opposes the court’s assertion of in rem jurisdiction. But this requirement does not somehow permit a defendant to oppose in rem jurisdiction whenever it pleases. Rather, the statutory requirement that the court make a specific finding reduces defendants’ options by designating a finding that must be made, and thus a point at which the court will consider objections to the assertion of in rem jurisdiction.
In fact, as a matter of statutory language, the ACPA provides far less support to a requirement that jurisdictional conditions persist than does the text of the diversity statute. The diversity statute provides that “[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,” and “is between” certain categories of litigants. 28 U.S.C.A. § 1332 (West 1993 & Supp.2002). Because nothing in the diversity statute refers to a time of determination, one could argue that if a time comes when “the matter in controversy” does not “exceed[ ]” $75,000,
By contrast, the anticybersquatting statute permits “the owner of a mark” to “file” an in rem action if “the court finds that the owner is not able to obtain in personam jurisdiction over a person who would have been a civil defendant.” 15 U.S.C.A. § 1125(d)(2)(A)(ii)(I). Because the ACPA refers specifically to filing and a finding, it indicates far more clearly than the diversity statute that once the action is filed and the finding is made, in rem jurisdiction is ordinarily complete. In sum, the language of the anticybersquatting statute provides less support for the proposition that the conditions of filing must persist than the language of the diversity statute does — yet even in the stronger case of the diversity statute, the proposition fails. An argument that the Supreme Court has rejected in another context where it appeared more plausible is hardly persuasive here, in its weaker form.
Furthermore, the policy interests that lead courts to continue to entertain cases even after the end of conditions that originally yielded diversity jurisdiction apply with equal force to the jurisdiction created under the anticybersquatting statute. See 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, § 3608 (discussing policy). To see this, we need only consider that under the British domain names’ theory, Holmgreen could have delayed even longer before submitting to personal jurisdiction; perhaps he might even have chosen to wait to see how the trial went, and then submitted to personal jurisdiction to stave off the expected entry of an adverse judgment. Nothing in the ACPA or its legislative history suggests that Congress intended to permit such manipulation. See 15 U.S.C.A. § 1125(d)(2); S.Rep. No. 106-140, at 10-11, 16 (1999); H.R.Rep. No. 106-412, at 14 (1999); see also generally FleetBoston,
B.
Having thus rejected the argument that the ACPA’s jurisdictional conditions must persist throughout the life of an in rem case, we have no difficulty in concluding that the British domain names objected much too late to in rem jurisdiction on the grounds of personal jurisdiction over their registrant, Holmgreen. They first challenged the court’s in rem jurisdiction, contending that the ACPA violates the Constitution, in September 2000, and lost. The British domain names did not argue that the court lacked in rem jurisdiction because of the existence of in personam jurisdiction over their registrant until July 2001, only three days before the scheduled in rem trial, five months after the court’s finding that in rem jurisdiction was proper, and a full nine months after their initial jurisdictional challenge.
At oral argument, the only explanation the British domain names could proffer for the July motion’s untimeliness was “outrage” at Porsche’s settlement tactics. A sense of “outrage” may explain Holm-green’s decision to submit to an in person-am action in California, but it hardly provides a satisfactory legal basis for ignoring the lengthy delay. Moreover, this very suggestion — that a person with an interest in a case could properly yank it across the country a few days before trial merely to express his outrage, thus increasing the opponent’s costs and imposing additional expense on the federal courts as a whole— well illustrates why the existence of jurisdiction should not be subject to manipulation in the later stages of litigation.
Because the British domain names delayed so long and entirely without excuse
C.
Alternatively, the British domain names contend that a number of the in rem provisions of the ACPA violate the Due Process Clause. These arguments totally lack merit.
Some of the British domain names’ constitutional arguments involve ACPA provisions not even at issue here. For example, they complain of a due process problem with 15 U.S.C.A. § 1125(d)(2)(C)(ii), which provides that the situs of a domain name may be the district in which the plaintiff deposits “documents sufficient to establish control and authority regarding the disposition of the registration and use of the domain name.” 15 U.S.C.A. § 1125(d)(2)(C)(ii). See Ford Motor Co. v. Greatdomains.com, Inc.,
The British domain names’ principal constitutional challenge to the ACPA provisions at issue here centers on the “contacts” necessary for in rem jurisdiction. They argue that the Due Process Clause requires that to bring an ACPA in rem action in the Eastern District of Virginia, Porsche must prove that Holmgreen personally has minimum contacts with that jurisdiction. The British domain names contend that the minimum-contacts test of International Shoe Company v. Washington,
As the district court succinctly put it, in “an in rem proceeding in which the property itself is the source of the underlying controversy between plaintiff and defendant, ... due process is satisfied” by assigning jurisdiction based on the location of the property. See Rush v. Savchuk,
The British domain names seek to escape the consequences of this rule by asserting, apparently as a matter of common law, that domain names are not property—only an address. But see Panavision Int’l v. Toeppen,
We thus hold that the British domain names’ challenges to the constitutionality of the ACPA are as meritless as its contentions that it could not, and did not, waive its objections to in rem jurisdiction under the ACPA.
III.
Porsche argues that without reference to the ACPA, the district court had jurisdiction under 28 U.S.C.A. § 1655 over its trademark-dilution claims, seeking transfer and possession of the British and the Georgia domain names under 15 U.S.C.A. § 1125(c). Because this is Porsche’s only argument that would yield jurisdiction in the Eastern District of Vir
A trademark-dilution action under § 1125(c) and § 1655 simply cannot afford Porsche the only remedy it seeks in this case — transfer of the defendant domain names. If proved, a trademark-dilution claim entitles a plaintiff to an injunction that prevents a diluter from using the plaintiffs trademark. See 15 U.S.C.A. § 1125(e)(1, 2) (West 1998 & Supp.2002); see also, e.g., TCPIP Holding Co. v. Haar Communications Inc.,
Section 1655, meanwhile, authorizes in rem jurisdiction “to enforce any lien upon, or claim to” property, or to remove an “incumbrance or lien” on property. 28 U.S.C.A. § 1655. Although the ACPA does authorize transfer of a domain name as relief, see 15 U.S.C.A. §§ 1125(d)(2)(D)®, 1125(d)(1)(C), a trademark-dilution claim under § 1125(c) simply does not give Porsche a “lien upon, or claim to” the offending property. Porsche can thus assert no trademark right under § 1125(c) alone that is of the type that it may enforce through § 1655.
Nor will we stretch the trademark-dilution statute to afford Porsche the remedy it seeks. Because of the importance of domain names and the possibility of using them to do substantial damage to valuable trademarks, it might have been tempting, before the enactment of the ACPA, to try to provide such a remedy to holders of marks in cases involving domain names held by foreign registrants. Cf. Washington Speakers Bureau, Inc. v. Leading Authorities, Inc.,
To ensure a remedy in anticybersquat-ting cases, however, Congress chose not to amend § 1655, but to create a separate statutory provision, § 1125(d). If trademark-dilution law had allowed for a transfer remedy before the enactment of the ACPA, we could not conclude that the ACPA replaced that remedy, because Congress provided that the “in rem jurisdiction established under [§ 1125(d)] shall be in addition to any other jurisdiction that otherwise exists, whether in rem or in personam.” 15 U.S.C.A. § 1125(d)(4). In so providing, however, Congress took no position on whether in rem jurisdiction under § 1655 “otherwise exists” for trademark-dilution claims under § 1125(c). See also S.Rep. No. 106-140, at 7-8 (noting “uncertainty as to the trademark law’s application to the Internet” and noting that “legislation is needed to ... provide adequate remedies”); H.R.Rep. No. 106-412, at 6 (1999) (same). We may and do conclude that the enactment of the ACPA eliminated any need to force trademark-dilution law beyond.its traditional bounds in order to fill a past hole, now otherwise plugged, in protection of trademark rights.
As the Second Circuit recently remarked, the ACPA “was adopted specifically to provide courts with a preferable alternative to stretching federal dilution law when dealing with cybersquatting
IV.
In sum, Porsche may not seek possession of any offending domain name through a trademark-dilution claim under 15 U.S.C.A. § 1125(c) and 28 U.S.C.A. § 1655. Accordingly, we affirm the district court’s judgment dismissing this claim. Assertion of in rem jurisdiction over Porsche’s claims against the British domain names under 15 U.S.C.A. § 1125(d), however, does not violate constitutional principles of due process, and these domain names delayed too long in objecting to the district court’s in rem jurisdiction on the ground that another court had in personam jurisdiction over their registrant. We therefore vacate the district court’s judgment dismissing Porsche’s anticybersquatting claims against the British domain names and remand for further proceedings consistent with this opinion. Because our disposition of Porsche’s appeal moots the British domain names’ claims for sanctions and attorney’s fees, we dismiss the cross-appeal.
AFFIRMED IN PART, DISMISSED IN PART, AND VACATED AND REMANDED IN PART.
Notes
. The British domain names cross-appeal from the district court's orders denying their motions for attorney's fees and Rule 11 sanctions. Our resolution of the appeal moots these claims; accordingly, we dismiss the cross-appeal.
. Our ACPA analysis involves only the claims of the British domain names, because Porsche has not appealed from the district court's order dismissing its ACPA claims against the Georgia domain names. We further note that the district court did not construe Porsche’s pleadings to state either a trademark-dilution claim under § 1125(c) that relied on § 1125(d)(2) as its jurisdictional basis or an anticybersquatting cláim under § 1125(d)(1) that relied on § 1655 as its jurisdictional basis. In this court, Porsche did not challenge this construction in its briefs, see Brief of Appellant at 5, and expressly endorsed tire construction at oral argument. See Harrods Ltd. v. Sixty Internet Domain Names,
. The British domain names also suggest that the ACPA's provisions for service of process in rem cases "may be” unconstitutional, without squarely arguing that they are. Brief of Appellees at 34. In fact, the British domain names responded to Porsche's suit in a timely way; plainly, therefore, actual notice existed in this case.