Due Process and In Rem Jurisdiction under the Anti-Cybersquatting Consumer Protection Act

Abstract

The 1999 enactment of the Anti-Cybersquatting Consumer Protection Act (ACPA) provides trademark holders with effective and efficient means to defend their marks against bad faith cybersquatters. The statute’s in rem jurisdiction provisions, whereby the infringing domain name stands as the res and its situs is deemed to be the jurisdiction hosting the domain name registrar, are one of its more powerful features, enabling trademark owners to sue foreign or anonymous cybersquatters. However, the constitutional status of in rem jurisdiction is uncertain, as the Supreme Court has been unable to agree on the extent of contacts needed to establish in rem jurisdiction. So far, the ACPA in rem provisions have withstood constitutional due process challenges, but the leading case was not thorough enough in its due process analysis. By focusing on the particular manner in which the ACPA in rem jurisdiction provisions impact a cybersquatter’s rights, the author argues that the ACPA in rem provisions do not run afoul of due process. The novelty of a domain name standing as a res isolates the ACPA from conventional in rem caselaw. However, the author points out that while the constitutional status of in rem jurisdiction is unsettled, maritime caselaw provides some guidance on the due process requirements for the ACPA provisions. The author proceeds to argue, on the basis of these guidelines, that the ACPA contains procedural safeguards that strongly support constitutionality. The author then shows how certain indicia of cybersquatter bad faith may provide additional contacts to buttress the procedural safeguards. The procedural safeguards, together with the additional contacts supplied by bad faith, assure that the operation of the ACPA in rem jurisdiction provisions complies with due process.