A foreign plaintiff relying only on foreign commercial activity may have difficulty stating a § 43(a) injury. Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697, 706–10 (4th Cir. 2016). In Belmora, the Fourth Circuit rejected a rule requiring the foreign plaintiff to show prior use of its mark in United States commerce as a condition of bringing a § 43(a) claim. There, the foreign plaintiff plausibly alleged proximate cause where consumers familiar with the plaintiff's Mexican FLANAX product could be deceived by the defendant's United States use and thereby withhold trade from the plaintiff. Id. at 711–12. Mexico's geographic relationship with the United States and the cross-border purchasing allegations was deemed relevant, but there is no border-sharing requirement. Belmora also cautioned that “[a] few isolated consumers” who merely confuse a domestic mark with one seen abroad, without additional misleading conduct, would rarely state a viable claim. Id. at 710 n.8. 

The District of South Carolina recently addressed whether a Myrtle Beach restaurant operating under the HONEST GREENS name infringed Plaintiff's trademark rights and other Lanham Act claims for its HONEST GREENS restaurants in Spain and Portugal. Honest Greens Barcelona, S.A.U. v. Poky’s LLC, No. 4:24-cv-07023-JD, 2026 WL 2593358 (D.S.C. Sept. 2, 2026). 

Plaintiff alleged “substantial contact with United States consumers” by selling meals to customers from the US, tens of thousands of visits to honestgreens.com from United States IP addresses; approximately 8,000 United States-based users following its HONEST GREENS Instagram account; and alleged actual confusion including a message asking, “Same menu as honest greens abroad?” and another reporting, “I've placed this order but it got sent to the wrong location in Myrtle Beach.”

Drawing reasonable inferences in Plaintiff's favor, those allegations describe consumer-facing deception tied to the very commercial reputation Plaintiff says the Lanham Act protects.

But Plaintiff had no restaurant in the United States, so presumably neither damages nor injunctive relief were available. See Dawn Donut Co., Inc. v. Hart's Food Stores, Inc., 267 F.2d 358 (2d Cir. 1959); see also Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1536 (4th Cir. 1984) (finding likelihood of confusion but held territorial injunctive relief unavailable at that time because the plaintiff had not penetrated the defendant's market); Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 938 (4th Cir. 1995) (holding that a geographically remote New York restaurant was not damaged by the defendant's Virginia restaurant).

Physical separation is particularly significant when individual restaurants are competing and the distant restaurant plaintiff's burden as a “high hurdle.” Brennan's, Inc. v. Brennan's Rest., L.L.C., 360 F.3d 125, 134–35 (2d Cir. 2004). But the Honest Greens court noted that Brennan's recognized that a geographically remote mark may gain protection in a distant market through extensive advertising or a sufficiently strong reputation, and it made clear that geography alone is not decisive. At the pleading stage, the court did not assume that "the parties occupy wholly hermetic markets." Plaintiff's allegations of "United States advertising, United States digital users, United States customers, and actual affiliation confusion" were sufficient to avoid a Rule 12 judgment on the pleadings because the Court "declines to decide at Rule 12(c) the ultimate territorial scope of any permanent injunction, the amount or availability of monetary relief, or the degree of market penetration Honest Greens can prove." 

While geographic market separation is highly relevant, particularly to likelihood of confusion and territorial injunctive relief, the Court held that it is not a "categorical rule." 

Professor Tushnet noted on her 43(B)log that "it's hard to get rid of a foreign TM owner's complaint at the motion to dismiss stage despite territoriality."