IP Law Daily, TRADEMARK—4th Cir.: Dutch software company fails to narrow injunction in cross-border IP dispute, (Jul 14, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

A foreign software company’s conduct in the United States supported continued trademark, trade secret, and tortious-interference injunction despite the Supreme Court’s decision limiting the Lanham Act’s extraterritorial reach.

The U.S. Court of Appeals for the Fourth Circuit has affirmed a district court’s second amended preliminary injunction against a Dutch software company in a cross-border intellectual property dispute with its American business partner, holding that the injunction remained consistent with the Supreme Court’s decision in Abitron Austria GmbH v. Hetronic International, Inc., 600 U.S. 412 (2023). The court concluded that the Dutch company’s alleged trademark infringement involved sufficient domestic conduct to fall within the Lanham Act, that its alleged trade secret misappropriation remained actionable under the Defend Trade Secrets Act (DTSA), and that the injunction appropriately preserved the parties’ positions pending trial. The court also dismissed for lack of appellate jurisdiction the company’s appeals from a district court order requiring it to correct alleged misrepresentations made in parallel Dutch litigation and a subsequent civil contempt order (Dmarcian, Inc. v. Dmarc Advisor BV, No. 23-1790 (4th Cir. Jul. 10, 2026)).

Background. The plaintiff/appellee, dmarcian, Inc. (dInc), is a North Carolina-based software company that develops and markets email authentication software using the DMARC protocol. The defendant/appellant, DMARC Advisor BV (dBV), is a Dutch software company formerly known as dmarcian Europe BV. The companies previously maintained a business relationship that later deteriorated into litigation. dInc alleged that dBV misappropriated its intellectual property and customers after the relationship ended. The lawsuit asserted claims for copyright infringement, trademark infringement, trade secret misappropriation under the DTSA, tortious interference with contract, tortious interference with prospective economic advantage, breach of contract, and numerous related business torts. Although the district court later dismissed the copyright claim, it found that dInc was likely to succeed on its trademark infringement, trade secret misappropriation, and tortious interference claims and entered a preliminary injunction.

The dispute involved multiple forms of intellectual property. dInc alleged that dBV infringed its dmarcian trademark by operating a nearly identical website using the dmarcian name and branding to market competing software. It also alleged that dBV misappropriated confidential source code and other trade secrets used to develop its email authentication software. The original complaint also asserted a claim of copyright infringement relating to software code, but that claim was dismissed before the district court entered the second amended preliminary injunction at issue on appeal.

According to dInc, dBV copied its brand identity, software code, and customer information after the parties' business relationship collapsed. The district court found that dBV created a website using dInc's name, logo, employee likenesses, and customer identities to market substantially the same software product. It also found that the website specifically targeted customers in the Americas and that dBV persuaded at least one U.S. customer, Clarizen, to switch from dInc's software. In 2021, the district court entered a preliminary injunction after concluding that dInc was likely to succeed on its copyright, trademark, trade secret, and tortious interference claims. The Fourth Circuit affirmed that injunction in 2023. Following the Supreme Court's decision in Abitron and the dismissal of the copyright claim, the district court modified the injunction to remove copyright-related relief while preserving restrictions based on the trademark, trade secret, and tortious interference claims. dBV appealed the modified injunction and separately challenged a correction order and a civil contempt order arising from parallel proceedings in the Netherlands.

Trademark infringement. The Fourth Circuit first considered whether the modified injunction complied with Abitron, which abandoned the former "effects" test for determining the Lanham Act's extraterritorial reach. The court explained that Abitron requires domestic "infringing use in commerce" before the Lanham Act applies. It concluded that dBV satisfied that requirement because it maintained a website using dInc's trademark as its domain name, marketed competing services to customers in the United States, included a dedicated "Americas" button on its website, sent promotional messages to U.S. customers, and successfully obtained business from at least one American customer. Those activities constituted domestic marketing and sales rather than merely passive internet accessibility. The court emphasized that Abitron shifted the focus from domestic effects to domestic conduct, but dBV's conduct met either standard. Citing Abitron Austria GmbH, the court held that the Lanham Act continued to apply because the allegedly infringing commercial activity occurred in the United States.

Trade secrets. The court next addressed the DTSA claim. Unlike the Lanham Act, the DTSA expressly applies to certain conduct occurring outside the United States if an act in furtherance of the misappropriation occurs domestically. The court found that dBV originally accessed dInc's trade secrets through servers located in the United States, exceeded the scope of the parties' agreement by incorporating those trade secrets into its competing software, and used the resulting product to solicit American customers. Those domestic acts brought the alleged misconduct squarely within the DTSA's express extraterritorial provision. The court stressed that the DTSA protects American trade secret owners without improperly intruding upon foreign sovereignty because Congress expressly authorized such application.

Tortious interference and scope of injunction. The Fourth Circuit also concluded that dInc remained likely to succeed on its North Carolina tortious interference claims. It explained that dBV allegedly interfered with contractual and prospective business relationships belonging to a North Carolina company by targeting the same customers and successfully diverting at least one existing customer. The court further held that the modified injunction appropriately tracked the scope of the likely violations. The Lanham Act provisions applied only to websites accessible from the United States. In contrast, the broader territorial restrictions governing trade secrets and customer interference were justified by the DTSA's express extraterritorial reach and by North Carolina law. Relying on Trump v. CASA, Inc., 606 U.S. 831 (2025), the court explained that preliminary injunctions should provide complete, but not excessive, relief pending trial.

Rule 65 challenge. The Fourth Circuit rejected dBV's argument that the injunction violated Federal Rule of Civil Procedure 65(d)(1) because it prohibited changes to "the trade secret source code" without defining that phrase in greater detail. The court held that the injunction must be read in the context of the district court's earlier findings identifying the relevant trade secrets. Citing Ciena Corp. v. Jarrard, 203 F.3d 312 (4th Cir. 2000), it concluded that the language gave dBV adequate notice of the prohibited conduct while avoiding unnecessary disclosure of confidential information.

Correction and contempt orders. Finally, the Fourth Circuit dismissed dBV's appeals from the district court's correction order and civil contempt order for lack of appellate jurisdiction. The court held that neither order constituted an immediately appealable final order, injunction, or collateral order and that any challenge could be reviewed after final judgment. Although it declined to express a view on the merits of those orders, it observed that they raised significant issues concerning international comity and the appropriate limits of judicial intervention in parallel foreign proceedings.

The Case is No. 23-1790.

Judge: Wilkinson, J.

Attorneys: David Anthony Dorey (Blank Rome LLP) for Dmarcian, Inc. Samuel B. Hartzell (Womble Bond Dickinson [US] LLP) for DMARC Advisor BV f/k/a Dmarcian Europe BV.

Companies: Dmarcian, Inc.; DMARC Advisor BV f/k/a Dmarcian Europe BV

Cases: Trademark MarylandNews NorthCarolinaNews SouthCarolinaNews VirginiaNews WestVirginiaNews