Abitron Conduct Test in the Fourth Circuit: Targeting U.S. Customers via a Trademark-Misusing Website Triggers Domestic “Use in Commerce,” and Sanctions Tied to Foreign-Court Corrections Await Final Judgment Review

Introduction

In Dmarcian, Inc. v. DMARC Advisor BV (4th Cir. July 10, 2026), the Fourth Circuit confronted a recurring problem in modern IP disputes: a foreign defendant operates online in a manner that allegedly trades on a U.S. company’s trademark and trade secrets while insisting the “real” conduct occurred abroad. The plaintiff, dmarcian, Inc. (“dInc”), is a North Carolina-based software company. The defendant, DMARC Advisor BV (“dBV”), is a Dutch company accused of stealing dInc’s brand identity, source code (alleged trade secrets), and customers.

The case returned to the Fourth Circuit after its earlier decision in dmarcian, Inc. v. dmarcian Eur. BV, 60 F.4th 119 (4th Cir. 2023), which upheld a preliminary injunction under then-prevailing “effects” doctrine. The intervening Supreme Court decision in Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023) replaced the Lanham Act “effects” approach with a conduct-centered domestic “use in commerce” test. The key issues on this appeal were:

• Lanham Act reach after Abitron: whether dBV’s alleged conduct amounted to domestic “infringing use in commerce” despite its foreign base.
• Scope and drafting of injunctive relief: whether the modified (second amended) preliminary injunction properly tracked the territorial limits of U.S. law and complied with Rule 65(d)(1).
• Appellate jurisdiction limits: whether the Fourth Circuit could immediately review (i) a “correction order” requiring a filing in Dutch court and (ii) a civil contempt order imposing a $400,000 fine for noncompliance.

Summary of the Opinion

The Fourth Circuit:

• Affirmed in part: it affirmed the district court’s second amended preliminary injunction, holding it consistent with Abitron because dBV’s alleged trademark misuse involved significant domestic conduct (not merely foreign conduct with U.S. effects).
• Dismissed in part: it dismissed for lack of appellate jurisdiction dBV’s appeals from:
  • the district court’s order compelling dBV to correct alleged misrepresentations to the Dutch court (“the correction order”), and
  • the district court’s civil contempt order imposing a $400,000 compensatory sanction (“the contempt order”).
• Denied reassignment: it declined to reassign the case to a different district judge.

Analysis

1) Precedents Cited (and How They Shaped the Decision)

A. Extraterritoriality Framework and the Lanham Act

• Steele v. Bulova Watch Co., 344 U.S. 280 (1952)
  Role in the opinion: The court describes Steele as the historical foundation for Lanham Act “effects” analysis—allowing application where foreign conduct caused U.S. effects. The Fourth Circuit emphasizes that Abitron “put aside” Steele, making the old effects test no longer controlling for §§ 1114(1)(a) and 1125(a)(1).
• Nintendo of Am., Inc. v. Aeropower Co., Ltd., 34 F.3d 246 (4th Cir. 1994)
  Role: An example of the Fourth Circuit’s earlier Steele-influenced effects test (three-part test focused on effects on U.S. commerce). It functions as a “before” snapshot; the court implicitly retires it as governing law for Lanham Act extraterritorial scope after Abitron.
• RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325 (2016) and Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247 (2010)
  Role: These cases supply the modern two-step presumption-against-extraterritoriality framework:
  1. Does the statute clearly apply extraterritorially?
  2. If not, is the application domestic because the relevant conduct occurred in the U.S.?
  The Fourth Circuit uses them to situate Abitron as a Lanham Act application of the same methodology.
• Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023)
  Role: The central pivot of the appeal. The Fourth Circuit applies Abitron’s holding that §§ 1114(1)(a) and 1125(a)(1) do not apply extraterritorially and instead require domestic “infringing use in commerce.” The court then operationalizes what counts as domestic conduct in an internet-driven case: targeted U.S. marketing/advertising and at least one U.S. customer conversion.
• Hetronic Int'l, Inc. v. Hetronic Ger. GmbH, 99 F.4th 1150 (10th Cir. 2024)
  Role: A key post-Abitron interpretive aid. The Fourth Circuit adopts the concept that “use in commerce” includes not only direct sales but also marketing/advertising/distribution, and it treats those activities as occurring domestically when intended recipients are in the U.S. It also uses Hetronic to support the “customer location” rule for direct sales.
• Radiance Found., Inc. v. NAACP, 786 F.3d 316 (4th Cir. 2015) and People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir. 2001)
  Role: These cases ground the domestic doctrinal elements of infringement (use in commerce and likelihood of confusion), providing continuity: Abitron changes the territorial trigger, not the traditional confusion analysis.
• Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007)
  Role: The court uses Microsoft to underscore territoriality and comity concerns in IP, while simultaneously arguing that modern commerce and theft can be borderless—requiring careful but real domestic enforcement when domestic conduct exists.
• EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991) and Hilton v. Guyot, 159 U.S. 113 (1895)
  Role: These cases frame Congress’s power to legislate extraterritorially and the comity-infused balance between international “duty and convenience” and protecting domestic rights.

B. DTSA Extraterritoriality

• 18 U.S.C. § 1837 (DTSA extraterritorial provision)
  Role: The court treats § 1837 as a statutory rebuttal of the presumption against extraterritoriality: DTSA applies to foreign conduct if an “act in furtherance” occurs in the U.S.
• WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018) and Nestlé USA, Inc. v. Doe, 593 U.S. 628 (2021)
  Role: Cited as additional Supreme Court extraterritoriality applications; they reinforce that Abitron fits into a broader, statute-by-statute inquiry rather than an IP-specific anomaly.

C. Injunction Scope and Rule 65(d)(1)

• Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)
  Role: Standard purpose of preliminary injunction: preserve party positions pending merits.
• Trump v. CASA, Inc., 606 U.S. 831 (2025) and Trump v. Int'l Refugee Assistance Project, 582 U.S. 571 (2017) and Hecht Co. v. Bowles, 321 U.S. 321 (1944)
  Role: These authorities are used to justify remedial tailoring and “flexibility.” The key principle: injunctions may provide “complete relief” but not more; approximate matching is permissible at the preliminary stage.
• Minn. Mining & Mfg. Co. v. Pribyl, 259 F.3d 587 (7th Cir. 2001) and Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423 (7th Cir. 1985)
  Role: Cited for the anti-evasion principle: over-particularity can invite circumvention; generality can be justified, especially in trade-secret settings.
• Schmidt v. Lessard, 414 U.S. 473 (1974)
  Role: Establishes Rule 65(d)(1)’s seriousness: specificity prevents confusion and facilitates appellate review.
• Kadel v. Folwell, 100 F.4th 122 (4th Cir. 2024) (en banc), vacated on other grounds by Folwell v. Kadel, 145 S. Ct. 2838 (Mem.) (2025), and United States v. Fuller, 919 F.2d 139 (Tbl.), 1990 WL 190495 (4th Cir. Dec. 4, 1990)
  Role: Provide the Fourth Circuit’s context-sensitive approach to evaluating injunction clarity—read the words “in light of the circumstances.”
• Ciena Corp. v. Jarrard, 203 F.3d 312 (4th Cir. 2000)
  Role: Supports the conclusion that referencing “trade secret source code” can be sufficiently definite when the record and findings have repeatedly defined the subject matter throughout the litigation.

D. Jurisdiction to Review Correction and Contempt Orders

• 28 U.S.C. § 1292(a)(1) and Carson v. Am. Brands, Inc., 450 U.S. 79 (1981)
  Role: The court applies the “practical effect of an injunction” doctrine and the requirement of “serious, perhaps irreparable, consequence” for interlocutory review.
• 28 U.S.C. § 1291 and Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009)
  Role: Governs finality and the collateral order doctrine; the correction order is not “effectively unreviewable” because the only remediable harm (the fine) is reparable later.
• Haaland v. Brackeen, 599 U.S. 255 (2023) and Franklin v. Massachusetts, 505 U.S. 788 (1992)
  Role: Used to reject the idea that the Fourth Circuit can “remedy” the Dutch stay through an appellate opinion; federal relief must be via a judgment, not persuasive commentary—otherwise it becomes advisory.
• Fox v. Capital Co., 299 U.S. 105 (1936)
  Role: Supplies the “settled” rule: parties generally cannot immediately appeal civil contempt orders imposing fines; review must await final judgment.
• Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985)
  Role: Rejects immediate appeal of counsel disqualification orders; bundling disqualification with a monetary sanction does not bootstrap appellate jurisdiction.
• BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea's Def. Acquisition Program Admin., 884 F.3d 463 (4th Cir. 2018) and Microsoft Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012)
  Role: These are cited to acknowledge that district courts can issue foreign directives to protect the integrity of their proceedings, but should do so “sparingly”—flagging the comity gravity of the correction order, even as the appellate court declines immediate review.

E. Personal Jurisdiction Analogy

• Fuld v. Pal. Liberation Org., 606 U.S. 1 (2025), World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980), and Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351 (2021)
  Role: The court uses “minimum contacts” and “purposeful availment” to explain the normative logic of Abitron: a foreign business that deliberately targets U.S. markets can fairly be subjected to U.S. legal constraints for that domestic conduct.

2) Legal Reasoning

A. Applying Abitron: From “Effects” to “Conduct,” Without a Free Pass for Targeted U.S. Web Activity

The court’s principal move is to translate Abitron’s “infringing use in commerce” requirement into workable criteria for internet-enabled business conduct. It rejects a simplistic standard that would treat mere U.S. accessibility of a foreign website as domestic “use,” warning that such a rule would hollow out the presumption against extraterritoriality (citing Morrison’s “craven watchdog” language).

But the court equally rejects dBV’s attempt to treat cross-border online marketing as categorically foreign. It identifies concrete domestic conduct:

• a website using dInc’s mark (including as a domain name) and mimicking dInc’s site in a bid to sell competing services;
• affirmative U.S.-directed marketing signals, including an “Americas” button and messages to U.S. customers; and
• at least one successful conversion of a U.S. customer (Clarizen).

On those facts, the Fourth Circuit holds dInc is likely to prove domestic “marketing or advertising” and at least one domestic “direct sale,” satisfying domestic “use in commerce” under § 1114(1)(a) as interpreted through Abitron.

B. DTSA: Express Extraterritorial Reach Plus Domestic “Act in Furtherance”

The court distinguishes the Lanham Act (post-Abitron) from the DTSA. For trade secrets, Congress expressly chose partial extraterritorial application in 18 U.S.C. § 1837, conditioned on a U.S. “act in furtherance.” The court finds likely satisfaction of that condition because dBV allegedly:

• gained access to dInc’s trade secrets through data on U.S. servers, and
• used the secrets to pursue U.S. business (messages and website segmentation; landing Clarizen).

This is the opinion’s deeper theme: even where statutes differ on extraterritoriality, U.S. law tends to demand a principled nexus—here, culpable domestic conduct—before a U.S. court will restrain a foreign actor’s behavior.

C. North Carolina Tortious Interference: Constitutional “Significant Contacts” and Localized Harm

Although the opinion does not apply the federal presumption against extraterritoriality to state common law, it emphasizes that state law also cannot “rule the world.” By invoking Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981), the court frames state-law reach as limited by meaningful state contacts and interests. The contacts here include:

• dInc’s North Carolina domicile and business operations;
• existing and prospective customer relationships allegedly targeted through the cloned website and marketing; and
• in-state harm to dInc from lost customers and diverted payments.

D. Tailoring the Injunction: IP-Based Geo-Access Restrictions as a Domestic-Conduct Proxy

Having found likely merit on domestic Lanham Act conduct (and broader DTSA/tort claims), the court evaluates whether the injunction’s terms roughly match the likely violations. Key points:

• Lanham Act paragraphs: the injunction limits trademark restraints to the U.S. by restricting use “in the United States” or on websites “accessible to IP addresses from the United States,” thus tracking Abitron’s domestic-only limitation.
• Anti-evasion principle: the court accepts broader prophylaxis than the exact proven pathway (e.g., not merely banning an “Americas” button), relying on the idea that too-specific injunctions invite evasion (Minn. Mining & Mfg. Co. v. Pribyl).
• DTSA and tort paragraphs: broader geographic provisions (including worldwide provisions like “making changes to the trade secret source code”) are sustained given DTSA’s explicit extraterritorial reach and the tort nexus to North Carolina.

E. Rule 65(d)(1): “Trade Secret Source Code” Was Sufficiently Definite in Context

The defendant challenged the clause forbidding “making changes to the trade secret source code” as insufficiently specific. The Fourth Circuit rejects the challenge by anchoring definiteness in the litigation record: the “trade secret source code” had been litigated and found likely misappropriated repeatedly since 2021 and affirmed in 2023. Reading the injunction in context (per Fuller and Kadel v. Folwell), the court holds the term gives fair notice and supports appellate review, and it notes trade-secret injunctions need not disclose secrets with granular particularity.

F. Interlocutory Appeals Rejected: Jurisdictional Discipline in a Cross-Border Case

The court’s jurisdiction analysis is unusually central: it refuses to treat the correction and contempt orders as immediately appealable. Notably:

• Correction order: Even if it resembles an injunction in practical effect, interlocutory review fails because the alleged comity harm is either retrospective (cannot be “unrung”) or not redressable by a U.S. judgment (the court cannot order a Dutch court to lift a stay without issuing an advisory opinion). The only remediable harm is monetary (the fine), which can be addressed after final judgment.
• Contempt order: Under Fox v. Capital Co., civil contempt fines in ordinary civil litigation are reviewed with final judgment. Attempts to bootstrap review via counsel disqualification fail under Richardson-Merrell, Inc. v. Koller.

Doctrinally, this portion of the opinion reinforces that cross-border sensitivity does not expand Article III or statutory appellate jurisdiction; if anything, it intensifies the need to avoid advisory opinions and speculative remedial chains.

3) Impact

A. Post-Abitron “Targeting” Evidence Will Be Decisive for Online Trademark Disputes

The opinion supplies a practical template for what counts as domestic Lanham Act “use in commerce” when the defendant operates abroad:

• U.S.-directed website segmentation (e.g., region buttons like “the Americas”);
• affirmative outreach to U.S. customers (emails/messages);
• U.S. customer conversions and sales; and
• website mimicry using the plaintiff’s mark to market competing services to U.S. recipients.

Equally important, the court draws a line against jurisdiction-by-mere-accessibility, which would convert most global websites into domestic “use” and erode Abitron’s territorial constraint.

B. Geo-IP Access Restrictions Are Valid Tools to Conform Relief to Domestic Limits

By approving injunction provisions keyed to “accessible to IP addresses from the United States,” the Fourth Circuit effectively endorses geo-filtering as an administrable way to align remedies with domestic-only Lanham Act coverage. Future litigants should expect courts to treat geo-targeting and geo-blocking as relevant to both liability (targeting evidence) and remedy (tailoring).

C. DTSA Claims Remain a Powerful Companion to Trademark Claims in Cross-Border Theft Cases

Because the DTSA contains explicit extraterritorial reach conditioned on a U.S. “act in furtherance,” plaintiffs will likely continue pairing DTSA with Lanham Act and state tort theories. This opinion illustrates how the same fact pattern (U.S. server access, U.S.-directed commercialization) can simultaneously:

• anchor domestic “use in commerce” for the Lanham Act (post-Abitron), and
• trigger DTSA extraterritorial coverage under 18 U.S.C. § 1837.

D. Appellate Jurisdiction: Foreign-proceeding “Integrity” Orders May Often Be Unreviewable Until the End

The court’s dismissal signals that parties entangled in parallel foreign litigation may be forced to live with mid-case corrective directives and contempt fines (subject to later refund/reversal) until final judgment—unless they can show truly irreparable, redressable consequences within the appellate court’s power to remedy.

Complex Concepts Simplified

1) “Presumption against extraterritoriality”

A default rule: unless Congress clearly says otherwise, federal statutes are interpreted to apply only inside the United States. Courts apply a structured test (from RJR Nabisco) to determine whether a case involves domestic or extraterritorial application.

2) “Abitron’s conduct focus” vs. “Steele’s effects focus”

Before Abitron, courts often asked whether foreign conduct had substantial U.S. effects. After Abitron (for Lanham Act §§ 1114(1)(a) and 1125(a)(1)), the key question is whether the defendant engaged in domestic infringing “use in commerce” (sales or targeted marketing to U.S. customers), not merely whether U.S. consumers felt effects.

3) “Use in commerce” in infringement (not registration)

“Use in commerce” can be a term of art that differs depending on context. Here, the court treats infringement “use in commerce” as encompassing sales and marketing/advertising aimed at U.S. recipients, consistent with the Lanham Act infringement provision and post-Abitron interpretations.

4) Rule 65(d)(1) specificity

Injunctions must be clear enough that the defendant can tell what is forbidden. But in trade secret cases, courts can describe prohibited conduct in general terms—especially when the parties already litigated what the “trade secret” is—so long as the defendant has fair notice in context.

5) Why the appeals court couldn’t review the correction/contempt orders immediately

Appellate courts mostly review “final” judgments. Some interim orders are appealable, but only under narrow exceptions. Here, the court reasoned it could not meaningfully (and non-advisory) remedy the Dutch-court consequences midstream, and the monetary sanction could be addressed later.

Conclusion

This Fourth Circuit decision operationalizes Abitron for cross-border, web-driven trademark disputes: a foreign defendant cannot be held under the Lanham Act merely because its website is visible in the United States, but it can be held where the record shows targeted U.S. marketing and U.S. customer sales or conversions—i.e., domestic “infringing use in commerce.” At the remedial stage, geo-IP accessibility limits can appropriately tailor injunctions to domestic territorial constraints. In parallel, the opinion underscores that the DTSA’s express extraterritorial provision remains a potent basis for relief when there is a U.S. “act in furtherance.” Finally, the court insists on jurisdictional discipline: foreign-proceeding correction directives and civil contempt fines generally must await final judgment before appellate review, even in a case saturated with international comity concerns.