# dmarcian v. dmarcian Europe: The DTSA Reaches Across Borders

> The Fourth Circuit holds the Defend Trade Secrets Act can apply extraterritorially where a US-based act furthers the theft, reaching a Dutch former distributor.

Topic: Trade Secrets  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/dmarcian-v-dmarcian-europe-dtsa-extraterritorial/


Trade secrets travel across borders as easily as a login, and the question of whether a US statute can follow them has become one of the most practically important issues in the field. *dmarcian, Inc. v. dmarcian Europe BV*, 60 F.4th 119 (4th Cir. 2023), Nos. 21-1721, 21-2005 and 22-1728 (consolidated), decided February 14, 2023 in an opinion by Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, is the leading appellate roadmap for asserting the Defend Trade Secrets Act against a foreign defendant. The court held that the DTSA reaches conduct abroad when an act in furtherance of the misappropriation occurs in the United States, sustained personal jurisdiction over a Dutch former distributor, and refused to dismiss for forum non conveniens in favor of parallel litigation in the Netherlands. The decision packages extraterritoriality, jurisdiction, and the limits of a foreign forum into a single dispute.

## At a glance

- **Case:** *dmarcian, Inc. v. dmarcian Europe BV*, 60 F.4th 119 (4th Cir. 2023), Nos. 21-1721, 21-2005 and 22-1728 (consolidated)
- **Decided:** February 14, 2023, argued December 8, 2022; opinion by Judge J. Harvie Wilkinson III, joined by Judge Heytens and Senior District Judge Hudson. Affirmed in part; vacated and remanded in part, as to the amount of the civil contempt sanction only
- **Holding:** The DTSA applies extraterritorially under 18 U.S.C. 1837 where an act in furtherance of the offense is committed in the United States, and a Dutch defendant that accessed US-based servers and availed itself of a North Carolina relationship is subject to personal jurisdiction and injunctive relief.
- **Significance:** A rare appellate treatment of DTSA extraterritoriality, personal jurisdiction over a foreign misappropriator, and international comity, all in one case.

## The falling-out between a company and its distributor

dmarcian, Inc., a Delaware corporation headquartered in North Carolina, developed software for managing email authentication under the DMARC protocol. In 2016 it entered an oral arrangement, never reduced to writing, authorizing a Dutch entity, dmarcian Europe BV, to sell dmarcian's software in Europe and Africa. The relationship deteriorated from 2019, prompting proceedings in the Netherlands and, in March 2021, this suit in the Western District of North Carolina. dmarcian accused the European entity of competing directly for customers and of misusing dmarcian's source code and confidential client information, asserting claims including copyright and trademark infringement, misappropriation of trade secrets under the DTSA, and tortious interference. The district court denied the Dutch entity's motion to dismiss for lack of personal jurisdiction and forum non conveniens, entered a preliminary injunction, and later held the entity in contempt for violating it. The European entity appealed three orders, which the Fourth Circuit consolidated, raising four issues: personal jurisdiction, forum non conveniens, the merits of the preliminary injunction including extraterritoriality, and the contempt order.

## Extraterritoriality under section 1837

The threshold question was whether the DTSA could apply at all to conduct centered in the Netherlands. Federal statutes carry a presumption against extraterritorial application, but the DTSA contains an express provision addressing foreign conduct. Section 1837 provides that the chapter applies to conduct occurring outside the United States if the offender is a US person or organization, or if "an act in furtherance of the offense was committed in the United States." That second clause supplied the hook.

The Fourth Circuit found a sufficient domestic act. The Dutch entity had originally gained access to dmarcian's trade secrets through data stored on servers located in the United States, and there was a domestic nexus to the subsequent use or disclosure of that information. Accessing US-based servers to obtain the protected information was itself an act in furtherance of the misappropriation committed in the United States, which is exactly what section 1837(2) requires. The court rejected the argument that the nationality of the individuals involved stripped the conduct of its domestic character; what mattered was where the acts in furtherance occurred, not who performed them. With a qualifying domestic act established, the DTSA reached the foreign conduct.

This is the analytical core practitioners take from the case. The DTSA is not confined to theft that happens entirely on US soil. A foreign actor who reaches into US-based systems to take trade secrets, or whose scheme includes a meaningful act in the United States, can be pursued under the federal statute even though most of the wrongdoing unfolds abroad.

## Personal jurisdiction over a foreign defendant

Extraterritorial reach means little without a court that can bind the defendant. The Fourth Circuit sustained personal jurisdiction over the Dutch entity under North Carolina's long-arm statute and constitutional due process. The court cataloged the defendant's contacts: it had initiated the business relationship with a North Carolina company, entered a multi-year cooperative agreement contemplating performance connected to North Carolina, participated in regular virtual meetings and in-person visits, and depended on North Carolina-based servers and technical support to operate. Those contacts reflected purposeful availment of the forum, not random or attenuated links, and the claims arose out of that relationship. Requiring the Dutch entity to answer in North Carolina therefore comported with due process.

The jurisdictional analysis reinforces the extraterritoriality holding. The same US-centered facts that supplied the domestic act under section 1837, the reliance on US servers and the North Carolina relationship, also anchored the defendant to the forum. A foreign defendant that builds its business on a US company's systems and personnel cannot easily claim surprise at being sued where those systems and that company sit.

## Forum non conveniens and the parallel Dutch litigation

The Dutch entity urged the court to defer to litigation proceeding in the Netherlands, moving to dismiss on forum non conveniens grounds and arguing that Dutch courts offered an available and adequate forum. The Fourth Circuit, reviewing for abuse of discretion, disagreed. The Dutch courts could not effectively adjudicate claims arising under American trademark law, because trademark rights exist in each country solely according to that country's own statutory scheme, so a Dutch ruling would carry little force in the United States. Having failed to show an adequate alternative forum, the defendant could not satisfy the first step of the analysis, and the court did not need to reach the public and private interest factors. The court also rejected the argument that the injunction was premature pending the Dutch proceedings, reasoning that no conceivable construction of the 2016 license would have authorized the defendant's actions on a global scale.

The disposition was not a clean sweep, though the exception lay elsewhere. The court affirmed personal jurisdiction, the forum non conveniens ruling, and the preliminary injunction in full. It vacated and remanded only one thing: the amount of the civil contempt sanction. The district court had ordered $5,000 per day for each day the defendant used a "dmarcian" domain name without the required disclaimer, totaling $335,000 over 67 days. The Fourth Circuit upheld the contempt finding itself but held that because the sanction did not coerce compliance it could only be justified as compensatory, and the district court had not sufficiently explained how the per-day formula approximated dmarcian's losses. The court expressed no view on the correct amount.

Comity did shape the opinion's framing rather than its disposition. Judge Wilkinson closed with a discussion of the balance owed both to international duty and to the rights of a country's own citizens, cautioning that American judges must be sensitive to the legitimate interests of foreign nations while ensuring that US companies are not left without recourse when their intellectual property is misused abroad. The court emphasized that the injunction it affirmed was narrow, fashioned independently of the Dutch case, and not impervious to later modification should the trial court find that future evidence or foreign rulings warrant it.

## Open questions

*dmarcian* answers the central questions but leaves the boundaries for later cases. It does not define how substantial a domestic act must be to satisfy section 1837(2), leaving open whether a minor or incidental US touchpoint would suffice where the misappropriation is otherwise entirely foreign. It does not fully resolve how a US court should shape injunctive relief that operates against conduct in foreign markets subject to their own courts, a question the opinion's closing discussion of comity raises without settling. And as a preliminary-injunction ruling, it addresses likelihood of success rather than the merits, so the ultimate scope of liability and remedy remained to be worked out. As of July 2026 the dispute has continued through further proceedings, and the European entity was subsequently renamed, developments that underscore how protracted cross-border trade-secret litigation can be.

## Implications for creators and businesses

- **The DTSA can follow a secret abroad.** If a foreign actor accesses your US-based systems or commits some other act in furtherance in the United States, section 1837 may let you pursue federal trade-secret claims even when most of the theft occurs overseas. Preserve evidence of any US-based access or conduct.
- **Where your servers and staff sit matters.** US-based infrastructure and relationships both establish the domestic act for extraterritoriality and anchor personal jurisdiction over a foreign defendant. Understand that your technical footprint shapes your enforcement options.
- **Parallel foreign litigation is not an automatic bar.** A defendant cannot necessarily escape a US suit by pointing to proceedings abroad, especially where the foreign court cannot effectively adjudicate US intellectual property claims. A forum non conveniens motion fails at the threshold if the proposed alternative forum cannot deliver the remedy.
- **Structure international distribution with disputes in mind.** Contracts with foreign distributors should address governing law, forum, and access to confidential systems. The relationship's US contacts can determine whether you can enforce your rights at home if it sours.

## Frequently asked questions

**Does the Defend Trade Secrets Act apply outside the United States?** It can. In *dmarcian v. dmarcian Europe* the Fourth Circuit applied 18 U.S.C. 1837, which extends the DTSA to conduct occurring outside the United States when an act in furtherance of the offense was committed in the United States. Because the Dutch defendant originally accessed the trade secrets from servers located in the United States and there was a domestic nexus to the use or disclosure, the court found the statutory requirement for extraterritorial application satisfied. The DTSA is not limited to purely domestic theft.

**How did a US court get personal jurisdiction over a Dutch company?** Through purposeful availment. The Fourth Circuit found that the Dutch entity had initiated a business relationship with a North Carolina company, entered a multi-year cooperative agreement contemplating performance there, held regular virtual and in-person meetings, and depended on North Carolina-based servers and support. Those contacts were enough to satisfy the state long-arm statute and constitutional due process, so the Dutch defendant could be sued in North Carolina.

**What happened to the parallel Dutch litigation and comity arguments?** The defendant moved to dismiss on forum non conveniens grounds, arguing that Dutch courts were an adequate alternative forum. The Fourth Circuit held the district court did not abuse its discretion in rejecting that argument, because the Dutch courts could not effectively adjudicate the US trademark claims and so were not an adequate forum. It affirmed personal jurisdiction, the forum non conveniens ruling, and the preliminary injunction in full, noting the district court had fashioned a narrow injunction independently of the Dutch case. The only part vacated and remanded was the amount of the civil contempt sanction, which the court found insufficiently explained as compensatory. As of July 2026 the dispute has continued through further proceedings, and the European entity was later renamed DMARC Advisor BV.

## Authorities and sources

- *dmarcian, Inc. v. dmarcian Europe BV*, 60 F.4th 119 (4th Cir. 2023), Nos. 21-1721, 21-2005, 22-1728, slip opinion: [U.S. Court of Appeals for the Fourth Circuit](https://www.ca4.uscourts.gov/opinions/211721.P.pdf)
- *dmarcian, Inc. v. dmarcian Europe BV* (4th Cir. 2023), opinion: [FindLaw](https://caselaw.findlaw.com/court/us-4th-circuit/2188462.html)
- 18 U.S.C. 1837 (DTSA, conduct outside the United States): [Cornell LII](https://www.law.cornell.edu/uscode/text/18/1837)
- 18 U.S.C. 1836 (DTSA, private civil action): [Cornell LII](https://www.law.cornell.edu/uscode/text/18/1836)
- *dmarcian, Inc. v. dmarcian Europe BV*, No. 1:21-cv-00067-MR (W.D.N.C.), district court order of March 31, 2021: [govinfo](https://www.govinfo.gov/content/pkg/USCOURTS-ncwd-1_21-cv-00067/pdf/USCOURTS-ncwd-1_21-cv-00067-0.pdf)