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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

------------------------------------------------*

PORSCHE CARS NORTH AMERICA,

INCORPORATED; DR. ING. H.C.F.

PORSCHE AG,

Plaintiffs-Appellants,

PORSCHE.NET; PORSCHECLUB.NET;

PORSCHELOANS.COM;

PORSCHELEASE.COM;

PORSCHELOAN.COM,

Defendants-Appellees,

and

PORSCH.COM, an internet domain

name and the following internetNo. 01-2028

domain names: PORSCHECAR.COM;

PORSCHAGIRLS.COM; 928

PORSCHE.COM;

ACCESSORIES4PORSCHE.COM;

ALLPORSCHE.COM;

BEVERLYHILLSPORSCHE.COM;

BOXSTER.COM; BOXSTER.NET;

BOXSTERS.COM; BUYAPORSCHE.COM;

CALPORSCHE.COM; E-PORSCHE.COM;

EVERYTHINGPORSCHE.COM;

FORMULAPORSCHE.COM;

IANSPORSCHE.COM; IDOPORSCHE.COM;

LAPORSCHE.COM; LYNCHPORSCHE.COM;

MYPORSCHE.COM; NEWPORSCHE.COM;

PARTS4PORSCHE.COM;

------------------------------------------------*

PO[ZERO]RSCHE.COM;

PASSION-PORSCHE.COM; PORSCHE.ORG;

PORSCHE-911.COM; PORSCHE-911.NET;

PORSCHE-944.COM;

PORSCHE-ACCESSORIES.COM;

PORSCHE-AUTOS.COM;

PORSCHE-BOOKS.COM;

PORSCHE-CARRERA.COM;

PORSCHE-CARS.COM;

PORSCHE-CITY.COM;

PORSCHE-CLASSIC.COM;

PORSCHE-EXCHANGE.COM;

PORSCHE-LEASING.COM;

PORSCHE-LYNN.COM;

PORSCHE-MODELLCLUB.COM;

PORSCHE-MUNICH.COM;

PORSCHE-NET.COM ; PORSCHE-NL.COM;

PORSCHE-ONLINE.COM;

PORSCHE-RS.COM ; PORSCHE-SALES.COM;

PORSCHE-SERVICE.COM;

PORSCHE-SUPERCUP.COM;

PORSCHE-WEB.COM; PORSCHE356.COM;

PORSCHE4ME.COM ; PORSCHE4SALE.COM;

PORSCHE911.COM; PORSCHE911.NET;

PORSCHE911.ORG;

PORSCHE911PARTS.COM;

PORSCHE914.COM; PORSCHE924.COM;

PORSCHE944.COM; PORSCHE993.COM;

PORSCHE996.COM; PORSCHEAG.COM;

PORSCHEAUDIPARTS.COM;

------------------------------------------------*

PORSCHEBOOKS.COM;

PORSCHEBOXTER.COM;

PORSCHECARRERA.COM;

PORSCHECARS.COM;

PORSCHECARSALES.COM;

PORSCHECARSFORSALE.COM;

PORSCHECASINO.COM;

PORSCHECHAT.COM;

PORSCHECLASSIFIED.COM;

PORSCHECLUB.ORG;

PORSCHECONNECTION.COM;

PORSCHEDEALER.COM;

PORSCHEDEALER.NET;

PORSCHEDEALERS.COM;

PORSCHEDEALERS.NET;

PORSCHEDIRECT.COM;

P[ORSCHEDIRECT.NET;

PORSCHEDOCTOR.COM;

PORSCHEFANS.COM;

PORSCHEFLEET.COM;

PORSCHEFORMULA.COM;

PORSCHEFX.COM; PORSCHEGT.COM;

PORSCHEHAUS.COM;

PORSCHELYNN.COM; PORSCHEMAIL.COM;

PORSCHENOW.COM; PORSCHENUT.COM;

PORSCHEONLINE.COM;

PORSCHEOWNER.COM;

PORSCHEOWNERS.COM;

PORSCHEOWNERSCLUB.COM;

PORSCHEPARTS.COM;

PORSCHEPARTS.NET;

PORSCHEPHILES.ORG;

PORSCHEPRODUCTS.COM;

PORSCHERACING.COM;

PORSCHERIMS.COM; PORSCHES.COM;

PORSCHESALES.COM;

------------------------------------------------*

PORSCHESALESTODAY.COM;

PORSCHESCAPE.COM;

PORSCHESERVICE.COM;

PORSCHESPLAYHOUSE.COM;

PORSCHESTORE.NET;

PORSCHESTORE.COM;

PORSCHESTUFF.COM;

PORSCHESUCKS.COM;

PORSCHETODAY.COM;

PORSCHETRADER.COM;

PORSCHEWEB.COM;

PORSCHEWORLD.COM;

PORSCHEZENTRUM.COM;

PORSCHEZENTRUM.NET; PORSCHE.COM;

PRISTINEPORSCHE.COM; PORSCHE.COM;

ULTIMATEPORSCHE.COM;

USEDPORSCHE.COM;

USEDPORSCHES.COM;

WINAPORSCHE.COM,

Defendants.

------------------------------------------------*

PORSCHE CARS NORTH AMERICA,

INCORPORATED; DR. ING. H.C.F.

PORSCHE AG,

Plaintiffs-Appellees,

PORSCHE.NET; PORSCHECLUB.NET,No. 01-2073

Defendants-Appellants,

and

PORSCH.COM, an internet domain

name and the following internet

domain names: PORSCHECAR.COM;

------------------------------------------------*

PORSCHAGIRLS.COM; 928PORSCHE.COM;

ACCESSORIES4PORSCHE.COM;

ALLPORSCHE.COM;

BEVERLYHILLSPORSCHE.COM;

BOXSTER.COM; BOXSTER.NET;

BOXTERS.COM; BUYAPORSCHE.COM;

CALPORSCHE.COM; E-PORSCHE.COM;

EVERYTHINGPORSCHE.COM;

FORMULAPORSCHE.COM;

IANPORSCHE.COM; IDOPORSCHE.COM;

LAPORSCHE.COM; LYNCHPORSCHE.COM;

MYPORSCHE.COM; NEWPORSCHE.COM;

PARTS4PORSCHE.COM;

PO[ZERO]RSCHE.COM;

PASSION-PORSCHE.COM; PORSCHE.ORG;

PORSCHE-911.COM ; PORSCHE-911.NET;

PORSCHE-944.COM;

PORSCHE-ACCESSORIES.COM;

PORSCHE-AUTOS.COM;

PORSCHE-BOOKS.COM;

PORSCHE-CARRERA.COM;

PORSCHE-CARS.COM;

PORSCHE-CITY.COM;

PORSCHE-CLASSIC.COM;

PORSCHE-EXCHANGE.COM;

PORSCHE-LEASING.COM;

PORSCHE-LYNN.COM;

PORSCHE-MODELLCLUB.COM;

PORSCHE-MUNICH.COM;

PORSCHE-NET.COM ; PORSCHE-NL.COM;

PORSCHE-ONLINE.COM;

PORSCHE-RS.COM ; PORSCHE-SALES.COM;

PORSCHE-SERVICE.COM;

PORSCHE-SUPERCUP.COM;

PORSCHE-WEB.COM; PORSCHE356.COM;

------------------------------------------------*

PORSCHE4ME.COM ; PORSCHE4SALE.COM;

PORSCHE911.COM; PORSCHE911.NET;

PORSCHE911.ORG;

PORSCHE911PARTS.COM;

PORSCHE914.COM; PORSCHE924.COM;

PORSCHE944.COM; PORSCHE993.COM;

PORSCHE996.COM; PORSCHEAG.COM;

PORSCHEAUDIPARTS.COM;

PORSCHEBOOKS.COM;

PORSCHEBOXTER.COM;

PORSCHECARRERA.COM;

PORSCHECARS.COM;

PORSCHECARSALES.COM;

PORSCHECARSFORSALE.COM;

PORSCHECASINO.COM;

PORSCHECHAT.COM;

PORSCHECLASSIFIED.COM;

PORSCHECLUB.ORG;

PORCHECONNECTION.COM;

PORSCHEDEALER.COM;

PORSCHEDEALER.NET;

PORSCHEDEALERS.COM;

PORSCHEDEALERS.NET;

PORSCHEDIRECT.COM;

PORSCHEDIRECT.NET;

PORSCHEDOCTOR.COM;

PORSCHEFANS.COM;

PORSCHEFLEET.COM;

PORSCHEFORMULA.COM;

PORSCHEFX.COM; PORSCHEGT.COM;

------------------------------------------------*

PORSCHEHAUS.COM;

PORSCHELEASE.COM;

PORSCHELOAN.COM;

PORSCHELOANS.COM;

PORSCHELYNN.COM; PORSCHEMAIL.COM;

PORSCHENOW.COM; PORSCHENUT.COM;

PORSCHEONLINE.COM;

PORSCHEOWNER.COM;

PORSCHEOWNERS.COM;

PORSCHEOWNERSCLUB.COM;

PORSCHEPARTS.COM;

PORSCHEPARTS.NET;

PORSCHEPHILES.ORG;

PORSCHEPRODUCTS.COM;

PORSCHERACING.COM;

PORSCHERIMS.COM; PORSCHES.COM;

PORSCHESALES.COM;

PORSCHESALESTODAY.COM;

PORSCHESCAPE.COM;

PORSCHESERVICE.COM;

PORSCHESPLAYHOUSE.COM;

PORSCHESTORE.COM;

PORSCHESTORE.NET;

PORSCHESTUFF.COM;

PORSCHESUCKS.COM;

PORSCHETODAY.COM;

PORSCHETRADER.COM;

PORSCHEWEB.COM;

PORSCHEWORLD.COM;

PORSCHEZENTRUM.COM;

------------------------------------------------*

PORSCHEZENTRUM.NET; PORSCHE.COM;

PRISTINEPORSCHE.COM; PORSCHE.COM;

ULTIMATEPORSCHE.COM;

USEDPORSCHE.COM;

PORSCHESTORE.COM;

USEDPORCHES.COM;

WINAPORSCHE.COM,

Defendants.

------------------------------------------------*

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandra.
Claude M. Hilton, Chief District Judge; James C. Cacheris, Senior
District Judge.
(CA-99-6-A)

Argued: June 5, 2002

Decided: August 23, 2002

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and Bobby R. BALDOCK, Senior Circuit Judge of the
United States Court of Appeals for the Tenth Circuit,
sitting by designation.

____________________________________________________________

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.

____________________________________________________________

COUNSEL

ARGUED: Thomas Rex Lee, HOWARD, PHILLIPS & ANDER-

SEN, P.C., Salt Lake City, Utah, for Appellants. Darren James Quinn,

LAW OFFICES OF DARREN J. QUINN, San Diego, California, for

Appellees. ON BRIEF: Gregory D. Phillips, HOWARD, PHILLIPS

& ANDERSEN, P.C., Salt Lake City, Utah; John F. Anderson, RICH-

ARDS, MCGETTIGAN, REILLY & WEST, Alexandria, Virginia,

for Appellants. Paul M. DeCicco, LAW OFFICES OF PAUL

MICHAEL DECICCO, San Diego, California, for Appellees.

____________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

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 Anticy-

bersquatting 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. 2002). The district court dismissed both claims. Because the

district court rejected the anticybersquatting claims against some

domain names on the basis of a challenge to in rem jurisdiction raised

only three days before trial without excuse for the delay, we vacate

the order dismissing those claims. However, because federal

trademark-dilution law does not authorize the remedy Porsche seeks

under 28 U.S.C.A. § 1655 (West 1994), we affirm the order dismiss-

ing the trademark-dilution claims.

I.

The Internet is an "international computer network of both Federal

and non-Federal interoperable packet switched data networks": a net-

work of computers all around the world through which people com-

municate information to each other. 47 U.S.C.A. § 230(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 pro-

vision).

Federal law defines a domain name as "any alphanumeric designa-

tion which is registered with or assigned by any domain name regis-

trar, 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. Sports-

man's Mkt., Inc., 202 F.3d 489, 492-93 (2d Cir. 2000).

A person seeking the right to use a particular domain name may

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.baltimoreorioles.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., 174 F.3d 1036,

1044-45 (9th Cir. 1999).

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 volun-

tarily dismissed its claims against many others. Five domain names

did remain in the action. Christian Holmgreen, 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: porschelease.com, porscheloan.com, and porscheloans.com

(collectively "the Georgia domain names").

On motion by the British domain names, the district court dis-

missed 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, 51 F.

Supp. 2d 707 (E.D. Va. 1999), vacated by Porsche Cars N. Am., Inc.

v. Allporsche.com, Nos. 99-1804 & 99-2152, 2000 WL 742185 (4th

Cir. June 9, 2000).

While Porsche's appeal from the dismissal order was pending in

this court, Congress enacted the Anticybersquatting Consumer Protec-

tion 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, 2000 WL 742185.

On August 11, 2000, Porsche amended its complaint, adding anti-

cybersquatting 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 Decem-

ber 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 suffi-

cient facts to demonstrate that Porsche had exercised due diligence in

seeking to obtain in personam jurisdiction over Holmgreen, and so

dismissed the in rem anticybersquatting claims against the British

domain names. However, this dismissal was without prejudice, per-

mitting Porsche to file a second amended complaint to plead specifi-

cally 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 demon-

strated 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 Holmgreen 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 anticybersquatting claims

against them, arguing that the decision by Holmgreen divested the

district court of in rem jurisdiction under the ACPA. See 15 U.S.C.A.

§ 1125(d)(2)(A)(ii).

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

anticybersquatting 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

anticybersquatting 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.¹ We address first

the anticybersquatting claims and then the trademark-dilution claims.

We note that we have jurisdiction over the anticybersquatting claims,

despite the district court's characterization of its dismissal of them as

"without prejudice," because "the grounds for dismissal clearly indi-

cate that `no amendment [in the complaint] could cure the defects in

the plaintiff's case.'" Domino Sugar Corp. v. Sugar Workers Local

392, 10 F.3d 1064, 1067 (4th Cir. 1993) (citation omitted; interpola-

tion in original).

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.C.A. § 1125(d)(2)(A) (West Supp. 2002).

____________________________________________________________

¹ 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.

On February 23, 2001, the district court found that it had jurisdic-

tion over the British domain names under the ACPA.² See 15

U.S.C.A. § 1125(d)(2)(A)(ii)(I). Months later and just three days

before the scheduled trial in Virginia, the British domain names noti-

fied the court that their registrant had decided to submit to personal

jurisdiction in California. For that reason, the district court concluded

that it had lost in rem jurisdiction under the ACPA as a matter of law.

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 undoubt-

edly expresses Congress's preference for in personam suits: the

holder of a trademark must convince the court that in personam juris-

diction 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 Alitalia-

Linee Aeree Italiane S.p.A. v. Casinoalitalia.com, 128 F. Supp. 2d

340, 343-47 (E.D. Va. 2001); Lucent Techs., Inc. v. Lucentsucks.com,

95 F. Supp. 2d 528, 534 (E.D. Va. 2000). The statute simply does not

require, however, that those conditions continue throughout the litiga-

tion. If it did, in rem jurisdiction could be lost even long after a court

has made the requisite statutory finding permitting in rem jurisdiction

under the ACPA, no matter how late in personam jurisdiction arose.

To put it simply, we can find nothing, either in case law or in the

ACPA itself, to support such a conclusion.

____________________________________________________________

² 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 fur-

ther 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 claim

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 the construction at oral argu-

ment. See Harrods Ltd. v. Sixty Internet Domain Names, ___ F.3d ___

(4th Cir. Aug. 23, 2002) (permitting a claim for trademark dilution under

§ 1125(c) with § 1125(d)(2) as the jurisdictional basis).

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, 190 F.3d 648, 654 (4th Cir.

1999); see also 13 Charles Alan Wright et al., Federal Practice and

Procedure § 3522 (2d ed. 1984 & Supp. 2002). Initially, it is far from

clear that this well-known aspect of subject-matter jurisdiction has

anything to do with in rem jurisdiction. Porsche's assertion of sub-

stantive claims under federal statutes, the ACPA and the trademark-

dilution statute, invokes a federal court's subject-matter jurisdiction,

see 28 U.S.C.A. § 1331 (West 1993), while in rem jurisdiction con-

cerns a court's authority over the res - in this case, the domain

names Porsche seeks. See Dluhos v. Floating and Abandoned Vessel,

Known as "New York", 162 F.3d 63, 73 (2d Cir. 1998) (referring to

admiralty law and the diversity statute as alternate "bas[es] of subject

matter jurisdiction" for a plaintiff seeking to pursue an action in rem);

Standing Stone Media, Inc. v. Indiancountrytoday. com, 193 F. Supp.

2d 528, 536 (N.D.N.Y. 2002) (treating subject-matter jurisdiction as

distinct from in rem jurisdiction, in an ACPA in rem case).

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 juris-

diction "at the time the action is filed," regardless of later changes in

originally crucial facts such as the parties' citizenship or the amount

in controversy. Freeport-McMoRan, Inc. v. K N Energy, Inc., 498

U.S. 426, 428 (1991); see also generally 13B Wright et al. § 3608 (2d

ed. 1984 & Supp. 2002).

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, 397 U.S. 397, 402-05 (1970); 13 Wright et al. § 3567.1.

In any event, personal jurisdiction, rather than subject-matter juris-

diction, seems far more analogous to in rem jurisdiction. See United

States v. 51 Pieces of Real Property, 17 F.3d 1306, 1309 (10th Cir.

1994) (discussing in rem jurisdiction as a form of "jurisdiction . . .

over . . . the parties"); United States v. Republic Marine, Inc., 829

F.2d 1399, 1401 n.1 (7th Cir. 1987) (discussing in rem jurisdiction as

a "form[ ] of jurisdiction over the party"); FleetBoston Fin. Corp. v.

Fleetbostonfinancial. com, 138 F. Supp. 2d 121, 129 (D. Mass. 2001)

(discussing them as forms of "territorial jurisdiction"); 5A Wright &

Miller § 1351 (2d ed. 1990) (discussing the relationship between in

rem and in personam jurisdiction). The law of personal jurisdiction,

however, offers even less support to the British domain names,

because personal jurisdiction is indubitably waived absent timely

objection. See Fed. R. Civ. P. 12(b)(2), 12(h) (2002); Rector v.

Approved Fed. Sav. Banks, 265 F.3d 248, 253 n.2 (4th Cir. 2001); 5A

Wright & Miller § 1351 (citing cases). If a party may waive its objec-

tions to a form of jurisdiction, it follows that the conditions that create

that jurisdiction cannot be necessary in every case to a court's power

to hear the case, or required to exist throughout the life of the case.

Furthermore, in case law considering objections to in rem jurisdic-

tion other than the one presented in our case, we have found no sup-

port 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, 829 F.2d at

1401 n.1 ("[J]urisdiction in rem, like other forms of jurisdiction over

the party, may be waived. . . .") (admiralty); Cavcar Co. v. M/V Suz-

dal, 723 F.2d 1096, 1102 n.14 (3d Cir. 1983) (admiralty); Fish v.

Bamby Bakers, Inc., 76 F.R.D. 511, 513 (N.D.N.Y. 1977) (civil for-

feiture); see also Farwest Steel Corp. v. Barge Sea-Span 241, 769

F.2d 620, 621-23 (9th Cir. 1985) (finding consent to in rem admiralty

jurisdiction). We recently reached a similar conclusion in an ACPA

case. See Harrods, ___ F.3d at ___ n.7. Because some objections to

the existence of in rem jurisdiction itself may be waived, plainly not

all of the conditions that create in rem jurisdiction must persist

throughout the life of the case.

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 juris-

diction that asserts authority over it, the Court has held that a federal

court's appellate jurisdiction over the in rem case survives even if the

res is removed from the jurisdiction. See Republic Nat'l Bank of

Miami v. United States, 506 U.S. 80, 93 (1992); see also Stevedoring

Servs. of Am. v. Ancora Transport N.V., 59 F.3d 879, 881-83 (9th Cir.

1995) (extending Republic National Bank to the admiralty context).

True, the Republic National Bank Court was considering a chal-

lenge 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, just as, in our case, both the factual change

(submission to personal jurisdiction) and the jurisdictional challenge

have the same origin. Furthermore, the Supreme Court's general

reflections on the nature of jurisdiction and the conditions that create

it militate strongly against that argument. "Stasis is not a general pre-

requisite to the maintenance of jurisdiction," the Court explained, not-

ing both that a party can waive personal jurisdiction and that a party

cannot defeat diversity jurisdiction by pointing to later factual

changes. Id. at 88. Moreover, the Court concluded, "[n]othing in the

nature of in rem jurisdiction suggests a reason to treat it differently."

Id.

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 juris-

diction 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 find-

ing. (Although an excessively literal reading would require this find-

ing before a party may "file" an action at all, such a reading produces

an absurd result. See Alitalia, 128 F. Supp. 2d at 343 n.7.)

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 when-

ever it pleases. Rather, the statutory requirement that the court make

a specific finding reduces defendants' options by designating a find-

ing that must be made, and thus a point at which the court will con-

sider 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 cat-

egories of litigants. 28 U.S.C.A. § 1332 (West 1993 & Supp. 2002).

Because nothing in the diversity statute refers to a time of determina-

tion, one could argue that if a time comes when "the matter in contro-

versy" does not "exceed[ ]" $75,000, or when complete diversity of

citizenship no longer exists, a district court does not "have original

jurisdiction" any longer.

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 indi-

cates far more clearly than the diversity statute that once the action

is filed and the finding is made, in rem jurisdiction is ordinarily com-

plete. In sum, the language of the anticybersquatting statute provides

less support for the proposition that the conditions of filing must per-

sist than the language of the diversity statute does - yet even in the

stronger case of the diversity statute, the proposition fails. An argu-

ment 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 Wright et al. § 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 submit-

ted to personal jurisdiction to stave off the expected entry of an

adverse judgment. Nothing in the ACPA or its legislative history sug-

gests 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,

138 F. Supp. 2d at 126-28 (describing the ACPA's "relatively compli-

cated" legislative history).

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 juris-

diction 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

Holmgreen's decision to submit to an in personam action in Califor-

nia, 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 in challenging in rem jurisdiction on the ground that

personal jurisdiction existed, we need not address subtleties presented

by the anticybersquatting law, such as what showing, if any, could

justify reconsideration of an early finding that anticybersquatting in

rem jurisdiction existed under § 1125(d)(2)(A)(ii)(I), or when and

how such a showing would have to be made. We decide only that

early in an anticybersquatting case, the availability of personal juris-

diction may defeat in rem jurisdiction over the name, see, e.g.,

Lucent, 95 F. Supp. 2d at 531-34 (dismissing an in rem ACPA case

after the plaintiff located the U.S.-based registrant five days after

suing), and that submission three days before trial by a person who

received actual notice of the in rem action nine months earlier is far

too late.

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 suffi-

cient 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.,

177 F. Supp. 2d 656, 658-60 (E.D. Mich. 2001); Mattel, Inc. v.

Barbie-club.com, No. 00-CIV-8705-DLC, 2001 WL 436207 at *3-*4

(S.D.N.Y. May 1, 2001); FleetBoston, 138 F. Supp. 2d 121. But

another subsection of the ACPA, 15 U.S.C.A. § 1125(d)(2)(C)(1),

alternatively locates the situs of a domain name in the district in

which the registrar, registry, or other domain authority that registered

or assigned the name is located. See also 15 U.S.C.A. § 1125(d)(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 regis-

trar, domain name registry, or other domain name authority that regis-

tered or assigned the domain name is located [on certain

conditions]."). Because the registrar with which Holmgreen registered

the British domain names is based in the Eastern District of Virginia,

jurisdiction is proper in that district without reference to the subsec-

tion (§ 1125 (d)(2)(c)(ii)) that the domain names attack.³

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 Vir-

ginia, 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. Wash-

ington, 326 U.S. 310, 316 (1945), "applies to every exercise of judi-

cial power," citing Shaffer v. Heitner, 433 U.S. 186 (1977). Brief of

Appellees at 26-27. However, as the domain names themselves recog-

nize, Shaffer only holds that "[p]roperty alone is not sufficient `con-

tact' to support personal jurisdiction over a non-resident as to matters

unrelated to the property." Brief of Appellees at 27 (emphasis added).

This accurate acknowledgment dooms their argument, because Pors-

che's claims against the British domain names are entirely "related to

the property."

As the district court succinctly put it, in "an in rem proceeding in

which the property itself is the source of the underlying controversy

____________________________________________________________

³ 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.

between plaintiff and defendant, . . . due process is satisfied" by

assigning jurisdiction based on the location of the property. See Rush

v. Savchuk, 444 U.S. 320, 329 (1980) (considering the relationship of

the relevant property to "the substance of the litigation" in assessing

the constitutionality of an assertion of quasi in rem jurisdiction); Shaf-

fer, 433 U.S. at 207 ("[W]hen 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."); Harrods, ___ F.3d at ___; R.M.S.

Titanic, Inc. v. Haver, 171 F.3d 943, 957 (4th Cir. 1999); see also

Burnham v. Superior Ct. of Cal., 495 U.S. 604, 619-24 (1990); CNN

v. Cnnews.com, 162 F. Supp. 2d 484, 489-92 & n.21 (E.D. Va. 2001)

(rejecting a due process challenge to the constitutionality of the in

rem provision of the ACPA); Caesars World, Inc. v. Caesars-

palace.com, 112 F. Supp. 2d 502 (E.D. Va. 2000) (same); 4A Wright

& Miller §§ 1072, 1073.1 (3d ed. 2002) (suggesting that the ACPA's

in rem provision would withstand constitutional due process scru-

tiny). In a case that directly concerns possession of the defendant

domain names, the registrant's other personal contacts with the forum

are constitutionally irrelevant to the assertion of in rem jurisdiction

over the domain names he registered.

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, 141 F.3d 1316, 1326-27 (9th Cir. 1998) (exploring the

value of the bundle of rights associated with registration of a domain

name in rejecting an analogous position that "a domain name is noth-

ing more than an address"). Congress plainly treated domain names

as property in the ACPA, however. The domain names suggest that

Congress lacked power to do so, but support this proposition only by

analogizing to slavery's constitutionality before passage of the Thir-

teenth Amendment. Even if this ill-considered attempt to analogize

from people to domain names constituted an argument, we would see

no merit in it. Congress may treat a domain name registration as prop-

erty subject to in rem jurisdiction if it chooses, without violating the

Constitution. See Caesars World, 112 F. Supp. 2d at 504; Lucent, 95

F. Supp. 2d at 535.

We thus hold that the British domain names' challenges to the con-

stitutionality 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 Virginia over the Georgia domain names, we must reach

it. We disagree with Porsche.

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 plaintiff's trademark. See 15 U.S.C.A. § 1125(c)(1, 2) (West 1998

& Supp. 2002); see also, e.g., TCPIP Holding Co. v. Haar Communi-

cations Inc., 244 F.3d 88 (2d Cir. 2001) (considering an injunction

that barred use of offending domain names under § 1125(a) and (c));

Times Mirror Magazines, Inc. v. Las Vegas Sport News, L.L.C., 212

F.3d 157 (3d Cir. 2000) (affirming an injunction barring use of a

name under § 1125(c)). Under certain circumstances, it may also enti-

tle the plaintiff to a defendant's profits, damages, costs, and attorney's

fees, and even to destruction of the offending materials. See id.; 15

U.S.C.A. §§ 1117-18 (West 1994 & Supp. 2002). But nothing in

§ 1125(c) alone entitles a plaintiff to possess the offending materials.

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)(i), 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., 33 F. Supp. 2d

488, 504-05 (E.D. Va. 1999) (ordering a trademark infringer to "relin-

quish all rights" to infringing domain names), aff'd, Nos. 99-1440 &

99-1442, 2000 WL 825881 (4th Cir. June 27, 2000).

To ensure a remedy in anticybersquatting cases, however, Congress

chose not to amend § 1655, but to create a separate statutory provi-

sion, § 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 addi-

tion 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 stretch-

ing federal dilution law when dealing with cybersquatting cases."

Sporty's Farm, 202 F.3d at 497; see also Virtual Works, Inc. v.

Volkswagen of Am., Inc., 238 F.3d 264, 267 (4th Cir. 2001) (describ-

ing the enactment of the ACPA as a response to "cybersquatters ha[v-

ing] started to take the necessary precautions to insulate themselves

from liability under the Federal Trademark Dilution Act" (citation

omitted)). Furthermore, providing a domain name owner with a paral-

lel trademark-dilution action under § 1655 would eviscerate restric-

tions that Congress placed on actions under the ACPA. See 15 U.S.C.

§ 1125(d)(2)(A). We decline to expand trademark-dilution law to pro-

vide an alternative and more permissive route to in rem jurisdiction

than Congress provided in the anticybersquatting statute.

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 jurisdic-

tion over Porsche's claims against the British domain names under 15

U.S.C.A. § 1125(d), however, does not violate constitutional princi-

ples 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

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