Post-Abitron Rule in the Fourth Circuit: Targeted U.S. Web Marketing and U.S. Customer Sales Constitute Domestic “Infringing Use in Commerce”

I. Introduction

In Dmarcian, Inc. v. DMARC Advisor BV (4th Cir. July 10, 2026), the Fourth Circuit addressed a recurring problem in modern IP disputes: allegedly unlawful conduct that spans borders through software, websites, and remote customer acquisition. The plaintiff, dmarcian, Inc. (“dInc”), is a North Carolina software company. The defendant, DMARC Advisor BV (“dBV”), is a Dutch company that dInc alleged stole its brand identity, trade-secret source code, and customers.

This appeal followed the parties’ earlier trip to the Fourth Circuit in dmarcian, Inc. v. dmarcian Eur. BV, 60 F.4th 119 (4th Cir. 2023). After the Supreme Court’s intervening decision in Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023), dBV renewed its central defense: that U.S. law should not reach conduct it characterized as foreign.

The case presented three principal appellate issues:

  • Territorial reach after Abitron: whether dBV’s conduct satisfied Abitron’s “domestic conduct” requirement for Lanham Act liability (replacing the older “effects” approach associated with Steele v. Bulova Watch Co., 344 U.S. 280 (1952)).
  • Rule 65 specificity: whether the injunction’s restriction on “making changes to the trade secret source code” complied with Federal Rule of Civil Procedure 65(d)(1).
  • Appellate jurisdiction: whether the Fourth Circuit could immediately review (i) a district court order directing dBV to correct alleged misstatements to a Dutch court (the “correction order”), and (ii) a compensatory civil contempt sanction for noncompliance (the “contempt order”).

II. Summary of the Opinion

The Fourth Circuit:

  • Affirmed in part: it upheld the district court’s second amended preliminary injunction, concluding it complied with Abitron because dBV’s alleged infringement included substantial domestic conduct (not merely foreign conduct with U.S. effects).
  • Dismissed in part: it dismissed the appeals from the correction order and the contempt order for lack of appellate jurisdiction, emphasizing the final-judgment rule and narrowness of interlocutory exceptions.
  • Denied reassignment: it declined to reassign the case to a different district judge on remand.

III. Analysis

A. Precedents Cited

1. Extraterritoriality and Abitron’s replacement of Steele’s “effects” test

The court framed the legal shift as a move from an effects-based approach under Steele v. Bulova Watch Co. and circuit applications like Nintendo of Am., Inc. v. Aeropower Co., Ltd., 34 F.3d 246 (4th Cir. 1994), to the Supreme Court’s modern two-step presumption-against-extraterritoriality framework developed in:

  • Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247 (2010)
  • RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325 (2016)
  • WesternGeco LLC v. ION Geophysical Corp., 585 U.S. 407 (2018)
  • Nestlé USA, Inc. v. Doe, 593 U.S. 628 (2021)

Applying that framework to the Lanham Act, Abitron Austria GmbH v. Hetronic International, Inc. “put aside” Steele and held that the relevant Lanham Act provisions at issue—15 U.S.C. § 1114(1)(a) and § 1125(a)(1)—do not apply extraterritorially; they apply only where the defendant engages in domestic “infringing use in commerce.”

2. Domestic conduct in online trademark infringement

To operationalize Abitron in the internet context, the court relied on:

  • Radiance Found., Inc. v. NAACP, 786 F.3d 316 (4th Cir. 2015) (interpreting “use in commerce” in the constitutional sense for infringement)
  • People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir. 2001) (likely confusion and trademark principles in online context)
  • Hetronic Int'l, Inc. v. Hetronic Ger. GmbH, 99 F.4th 1150 (10th Cir. 2024) (post-Abitron guidance that “use in commerce” includes marketing/advertising/distribution; direct sales are domestic if customers are in the U.S.)

The Fourth Circuit also distinguished trademark registration concepts noted in VersaTop Support Sys., LLC v. Ga. Expo, Inc., 921 F.3d 1364 (Fed. Cir. 2019), observing that Abitron’s “infringing use in commerce” focuses on infringement (not registration) definitions.

3. Trade secrets: explicit extraterritorial provision in the DTSA

Unlike the Lanham Act after Abitron, the court emphasized that the Defend Trade Secrets Act contains explicit extraterritorial coverage: 18 U.S.C. § 1837 applies to foreign conduct if the offender committed “an act in furtherance of the offense” in the U.S. The court analogized this to the kind of “unmistakable instruction” discussed in RJR Nabisco, Inc. v. European Cmty..

4. State-law limits and constitutional contacts

For North Carolina tortious interference claims, the court noted the presumption against extraterritoriality is a federal statutory canon (citing Wudi Indus. (Shanghai) Co., Ltd. v. Wong, 143 F.4th 250 (4th Cir. 2025)), but state law is still constrained by constitutional due process and state-interest limits, citing Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981).

5. Injunction scope and tailoring

On preliminary injunction purpose and tailoring, the court relied on:

  • Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) (preserve status quo)
  • Trump v. CASA, Inc., 606 U.S. 831 (2025) (preliminary relief may provide “complete relief” but not more)
  • Trump v. Int'l Refugee Assistance Project, 582 U.S. 571 (2017) and Hecht Co. v. Bowles, 321 U.S. 321 (1944) (flexibility of equity)
  • 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) (over-specific injunctions invite evasion)

6. Rule 65(d)(1) specificity

The court applied the purposes articulated in Schmidt v. Lessard, 414 U.S. 473 (1974), and used a contextual approach consistent with United States v. Fuller, 919 F.2d 139 (Tbl.), 1990 WL 190495 (4th Cir. Dec. 4, 1990) and 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). It also cited Ciena Corp. v. Jarrard, 203 F.3d 312 (4th Cir. 2000) as approving similar trade-secret injunction framing.

7. Appellate jurisdiction over nonfinal orders

The dismissal of appeals from the correction order and contempt order was driven by:

  • 28 U.S.C. § 1291 finality principles, with United States ex rel. Lutz v. United States, 853 F.3d 131 (4th Cir. 2017)
  • 28 U.S.C. § 1292(a)(1) and “practical effect” doctrine from Carson v. Am. Brands, Inc., 450 U.S. 79 (1981)
  • Collateral order doctrine limits from Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (quoting Swint v. Chambers Cnty. Comm'n, 514 U.S. 35 (1995))
  • Pendent appellate jurisdiction limits from Rux v. Republic of Sudan, 461 F.3d 461 (4th Cir. 2006)
  • Nonappealability of civil contempt fines before final judgment from Fox v. Capital Co., 299 U.S. 105 (1936), reiterated with In re Bestwall, LLC, 99 F.4th 679 (4th Cir. 2024)
  • Nonappealability (by the party) of counsel disqualification orders under Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985)

The court’s discussion of remediability and advisory-opinion constraints invoked Haaland v. Brackeen, 599 U.S. 255 (2023) (quoting Franklin v. Massachusetts, 505 U.S. 788 (1992) (Scalia, J., concurring)), and contrasted remedial-return cases like Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992) and Stanko v. Stirling, 109 F.4th 681 (4th Cir. 2024).

8. Comity and foreign-proceeding directives

Though it declined jurisdiction, the court flagged the governing tension using BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea's Def. Acquisition Program Admin., 884 F.3d 463 (4th Cir. 2018) (foreign directives “sparingly”) and Microsoft Corp. v. Motorola, Inc., 696 F.3d 872 (9th Cir. 2012).

9. Reassignment standards

Reassignment was analyzed under Liteky v. United States, 510 U.S. 540 (1994) (quoting 28 U.S.C. § 2106) and Fourth Circuit factors from United States v. McCall, 934 F.3d 380 (4th Cir. 2019), United States v. Galecki, 932 F.3d 176 (4th Cir. 2019) (quoting United States v. North Carolina, 180 F.3d 574 (4th Cir. 1999)), and United States v. Nicholson, 611 F.3d 191 (4th Cir. 2010).

B. Legal Reasoning

1. The core holding: Abitron does not immunize targeted U.S. market conduct

The opinion’s central move is to accept Abitron’s doctrinal shift—effects no longer suffice for Lanham Act reach—while finding that the record showed domestic conduct anyway. The Fourth Circuit treated “domestic use in commerce” as satisfied not by mere worldwide web accessibility, but by U.S.-directed marketing and U.S. customer interaction.

On the facts, dBV allegedly:

  • operated a “virtually identical” website using dInc’s name/logo and likenesses of dInc employees;
  • added an “Americas” button—an explicit targeting mechanism;
  • sent messages to U.S. customers promoting its competing product; and
  • secured at least one U.S. customer (Clarizen) to switch from dInc to dBV.

From those facts, the court concluded dBV likely engaged in “marketing or advertising in the United States” and made a “direct sale in the United States” (because the customer was in the U.S.). This reasoning aligns with Abitron’s focus on the locus of the infringing “use,” and with the post-Abitron elaboration in Hetronic Int'l, Inc. v. Hetronic Ger. GmbH.

2. A limiting principle for the internet: accessibility alone is not enough

A key piece of the court’s practical guidance is its explicit caution that “web access alone” would be too expansive, because “most businesses around the world have websites that are accessible in the United States.” The court signaled that Abitron should not be operationalized in a way that collapses into universal Lanham Act coverage; it reinforced this point by invoking Morrison’s warning against turning the presumption against extraterritoriality into “a craven watchdog” (Morrison v. Nat'l Austl. Bank Ltd.).

Thus, the opinion points toward a workable post-Abitron internet framework: targeting and transactional engagement with U.S. recipients mark the difference between domestic conduct and merely foreign conduct visible from the U.S.

3. DTSA: extraterritorial by text, constrained by a domestic “act in furtherance”

For trade secrets, the court emphasized statutory text: 18 U.S.C. § 1837 extends DTSA coverage to foreign conduct if there is a U.S. “act in furtherance.” The Fourth Circuit found such domestic acts in (i) initial access to the data on U.S.-based servers, and (ii) use of the misappropriated code to pursue U.S. customers.

Importantly, the court portrayed DTSA’s extraterritoriality not as boundless, but as conditioned on the defendant’s choice to operate with meaningful U.S. contacts—echoing the comity rationale in Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007) while distinguishing DTSA as an express congressional extension.

4. State tort law: North Carolina’s interests and sufficient contacts

The court reaffirmed that North Carolina’s tortious interference doctrines could apply because the plaintiff is a North Carolina entity, the business relationships were solicited and maintained through dInc’s operations, and the alleged interference harmed dInc in North Carolina—satisfying the constitutional requirement of “significant contact or significant aggregation of contacts” from Allstate Ins. Co. v. Hague.

5. Injunction tailoring: matching relief to statute-by-statute territorial reach

A notable structural feature of the decision is how it validates a mixed-territory injunction by linking each restriction to the claims that support it:

  • Lanham Act paragraphs (trademark): limited to use in the U.S. or on websites accessible from U.S. IP addresses.
  • DTSA and tort paragraphs: broader geographic reach, including worldwide provisions, justified by DTSA’s express extraterritoriality and North Carolina tort law’s reach given the case’s contacts.

The court also endorsed flexibility at the preliminary stage under Trump v. CASA, Inc., Trump v. Int'l Refugee Assistance Project, and Hecht Co. v. Bowles, while accepting that injunctions need not be drafted so narrowly that defendants can “evade” them, citing Minn. Mining & Mfg. Co. v. Pribyl.

6. Rule 65(d)(1): “trade secret source code” is sufficiently specific in context

Rejecting the Rule 65(d)(1) challenge, the court took a contextual approach: the “trade secret source code” referenced in the injunction was the same subject of repeated district court findings and the earlier appellate affirmance. It relied on Ciena Corp. v. Jarrard to approve similar phrasing where the litigation record supplies clarity and the nature of trade secrets counsels against excessive public detail.

7. Jurisdictional holdings: strict adherence to finality and narrow interlocutory review

The court’s dismissals are significant for cross-border litigation tactics. Even where a foreign-court-related order raises serious comity concerns, the Fourth Circuit held it lacked jurisdiction because:

  • the correction order was not a final order under 28 U.S.C. § 1291 and did not qualify for interlocutory review under 28 U.S.C. § 1292(a)(1), the collateral order doctrine (Mohawk Indus., Inc. v. Carpenter), or pendent appellate jurisdiction (Rux v. Republic of Sudan); and
  • the civil contempt fine was not immediately appealable under the “settled” rule of Fox v. Capital Co., even though the contempt order also included attorney consequences that (as to the party) remain unappealable under Richardson-Merrell, Inc. v. Koller.

The court emphasized remedial limits and avoidance of advisory opinions, leaning on Haaland v. Brackeen and the remediability analysis of speculative causal chains involving foreign courts.

C. Impact

1. A practical post-Abitron roadmap for internet-facing trademark disputes

The opinion supplies a concrete, fact-based template for what constitutes domestic “infringing use in commerce” after Abitron in the online context:

  • Not enough: merely operating a website accessible from the U.S.
  • Likely enough: U.S.-directed features (“Americas” button), outreach to U.S. customers, and consummated U.S. customer switches/sales.

Future Lanham Act cases in the Fourth Circuit will likely focus heavily on evidence of targeting and transactional engagement with U.S. recipients, rather than downstream reputational or economic effects alone.

2. Injunction drafting in cross-border IP cases

The court validated a statute-sensitive approach to territorial tailoring: narrow IP-address-based restrictions for Lanham Act claims, while permitting broader restraints where DTSA or state tort theories justify them. This will likely influence how district courts craft preliminary injunctions in mixed-claim cases to withstand Abitron-based challenges.

3. Reinforcement of the final-judgment rule for foreign-proceeding disputes

Litigants seeking immediate appellate review of district court actions affecting foreign proceedings face an uphill battle. The court’s analysis suggests that even serious comity questions may have to await final judgment unless the order fits squarely within recognized interlocutory paths and offers judicially remediable harm.

IV. Complex Concepts Simplified

  • Presumption against extraterritoriality: Courts assume Congress did not mean a federal statute to govern conduct in other countries unless Congress clearly said so.
  • Abitron’s shift (“effects” to “conduct”): It is no longer enough that foreign infringement harms a U.S. company in the U.S.; the Lanham Act generally requires the defendant’s infringing use to occur in the U.S.
  • “Use in commerce” (infringement): In this opinion, the court treats “use in commerce” broadly to include advertising and marketing aimed at U.S. recipients, not only completed sales.
  • DTSA extraterritoriality: DTSA can reach foreign misappropriation if there is a U.S. “act in furtherance” of the theft (e.g., accessing secrets from U.S. servers, using them to pursue U.S. customers).
  • Rule 65(d)(1): Injunctions must be clear enough that the enjoined party understands what is forbidden, but they need not disclose trade secrets in detail; context in the record can supply needed clarity.
  • Final judgment rule: Most orders cannot be appealed immediately; parties usually must wait until the district court finishes the case.

V. Conclusion

Dmarcian, Inc. v. DMARC Advisor BV is the Fourth Circuit’s early, detailed application of Abitron to an internet-driven, cross-border trademark dispute. The court crystallized a key post-Abitron principle: targeted U.S. marketing and U.S. customer acquisition constitute domestic “infringing use in commerce,” while mere U.S. website accessibility likely does not.

At the remedial level, the court endorsed pragmatic injunction tailoring that tracks each claim’s territorial limits, upheld contextual specificity for trade-secret injunction terms, and reinforced strict jurisdictional limits on interlocutory appeals—especially for foreign-proceeding-related orders and compensatory civil contempt fines.