Abitron Austria GmbH v. Hetronic International, Inc.

NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal
errors.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–1043

															_________________

															ABITRON AUSTRIA GmbH, et al., PETITIONERS v. HETRONIC INTERNATIONAL, INC.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2023]

															Justice Alito delivered the opinion of the
Court.

															This case requires us to decide the foreign
reach of 15 U. S. C. §1114(1)(a) and §1125(a)(1), two
provisions of the Lanham Act that prohibit trademark infringement.
Applying the presumption against extraterritoriality, we hold that
these provisions are not extraterritorial and that they extend only
to claims where the claimed infringing use in commerce is
domestic.

															I

															This case concerns a trademark dispute between
a United States company (Hetronic International, Inc.) and six
foreign parties (five companies and one individual (collectively
Abitron)).[ 1 ] Hetronic
manufactures radio remote controls for construction equipment. It
sells and services these products, which employ “a distinctive
black-and-yellow color scheme to distinguish them from those of its
competitors,” in more than 45 countries. 10 F. 4th 1016, 1024 (CA10
2021) (case below).

															Abitron originally operated as a licensed
distributor for Hetronic, but it later concluded that it held the
rights to much of Hetronic’s intellectual property, including the
marks on the products at issue in this suit. After reverse
engineering Hetronic’s products, Abitron began to sell
Hetronic-branded products that incorporated parts sourced from
third parties. Abitron mostly sold its products in Europe, but it
also made some direct sales into the United States.

															Hetronic sued Abitron in the Western District of
Oklahoma for, as relevant here, trademark violations under two
related provisions of the Lanham Act. First, it invoked
§1114(1)(a), which prohibits the unauthorized “use in commerce [of]
any reproduction . . . of a registered mark in connection
with the sale, offering for sale, distribution, or advertising of
any goods or services” when “such use is likely to cause
confusion.” Hetronic also invoked §1125(a)(1), which prohibits the
“us[e] in commerce” of a protected mark, whether registered or not,
that “is likely to cause confusion.” Hetronic sought damages under
these provisions for Abitron’s infringing acts worldwide.

															Throughout the proceedings below, Abitron argued
that Hetronic sought an impermissible extraterritorial application
of the Lanham Act. But the District Court rejected this argument,
and a jury later awarded Hetronic approximately $96 million in
damages related to Abitron’s global employment of Hetronic’s marks.
This amount thus included damages from Abitron’s direct sales to
consumers in the United States, its foreign sales of products for
which the foreign buyers designated the United States as the
ultimate destination, and its foreign sales of products that did
not end up in the United States. The District Court later entered a
permanent injunction preventing Abitron from using the marks
anywhere in the world. On appeal, the Tenth Circuit narrowed the
injunction to cover only certain countries but otherwise affirmed
the judgment. It concluded that the Lanham Act extended to “all of
[Abitron’s] foreign infringing conduct” because the “impacts within
the United States [were] of a sufficient character and magnitude as
would give the United States a reasonably strong interest in the
litigation.” 10 F. 4th, at 1046.

															We granted certiorari to resolve a Circuit split
over the extraterritorial reach of the Lanham Act. 598 U. S.
___ (2023).

															II

															A

															“It is a ‘longstanding principle of American
law “that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction
of the United States.” ’ ” Morrison v. National
Australia Bank Ltd. , 561
U.S. 247 , 255 (2010). We have repeatedly explained that this
principle, which we call the presumption against
extraterritoriality, refers to a “presumption against application
to conduct in the territory of another sovereign.” Kiobel v. Royal Dutch Petroleum Co. , 569 U.S.
108 , 119 (2013) (citing Morrison , 561 U. S., at
265). In other words, exclusively “ ‘[f]oreign conduct is
generally the domain of foreign law.’ ” Microsoft Corp. v. AT&T Corp. , 550 U.S.
437 , 455 (2007) (alteration omitted). The presumption “serves
to avoid the international discord that can result when U. S.
law is applied to conduct in foreign countries” and reflects the
“ ‘commonsense notion that Congress generally legislates with
domestic concerns in mind.’ ” RJR Nabisco, Inc. v. European Community , 579 U.S. 325, 335–336 (2016).

															Applying the presumption against
extraterritoriality involves “a two-step framework.” Id. , at
337. At step one, we determine whether a provision is
extraterritorial, and that determination turns on whether “Congress
has affirmatively and unmistakably instructed that” the provision
at issue should “apply to foreign conduct.” Id. , at 335,
337; accord, Kiobel , 569 U. S., at 117 (asking whether
Congress “intends federal law to apply to conduct occurring
abroad”); Nestlé USA, Inc. v. Doe , 593 U. S.
___, ___ (2021) (slip op., at 3). If Congress has provided an
unmistakable instruction that the provision is extraterritorial,
then claims alleging exclusively foreign conduct may proceed,
subject to “the limits Congress has (or has not) imposed on the
statute’s foreign application.” RJR Nabisco , 579 U. S.,
at 337–338.

															If a provision is not extraterritorial, we move
to step two, which resolves whether the suit seeks a (permissible)
domestic or (impermissible) foreign application of the
provision.[ 2 ] To make that
determination, courts must start by identifying the
“ ‘ “focus” of congressional concern’ ” underlying
the provision at issue. Id. , at 336. “The focus of a statute
is ‘the object of its solicitude,’ which can include the conduct it
‘seeks to “regulate,” ’ as well as the parties and interests
it ‘seeks to “protect” ’ or vindicate.” WesternGeco LLC v. ION Geophysical Corp. , 585 U. S. ___, ___ (2018)
(slip op., at 6) (alterations omitted).

															Step two does not end with identifying statutory
focus. We have repeatedly and explicitly held that courts must
“identif[y] ‘the statute’s “focus” ’ and as[k] whether
the conduct relevant to that focus occurred in United States
territory.” Id. , at ___ (slip op., at 5) (emphasis added);
accord, e.g. , RJR Nabisco , 579 U. S., at 337.
Thus, to prove that a claim involves a domestic application of a
statute, “plaintiffs must establish that ‘the conduct
relevant to the statute’s focus occurred in the United
States.’ ” Nestlé , 593 U. S., at ___–___ (slip
op., at 3–4) (emphasis added); see, e.g. , WesternGeco , 585 U. S., at ___–___ (slip op., at 6–8)
(holding that a claim was a domestic application of the Patent Act
because the infringing acts—the conduct relevant to the focus of
the provisions at issue—were committed in the United States); Morrison , 561 U. S., at 266–267, 271–273 (concluding
that a claim was a foreign application of the Securities and
Exchange Act because the “purchase-and-sale transactions” at issue
occurred outside of the United States).

															Step two is designed to apply the presumption
against extraterritoriality to claims that involve both domestic
and foreign activity, separating the activity that matters from the
activity that does not. After all, we have long recognized that the
presumption would be meaningless if any domestic conduct could
defeat it. See Morrison , 561 U. S., at 266. Thus,
“ ‘[i]f the conduct relevant to the statute’s focus occurred
in the United States, then the case involves a permissible domestic
application’ of the statute, ‘even if other conduct occurred
abroad.’ ” WesternGeco , 585 U. S., at ___ (slip
op., at 6) (quoting RJR Nabisco , 579 U. S., at 337).
And “if the relevant conduct occurred in another country, ‘then the
case involves an impermissible extraterritorial application
regardless of any other conduct that occurred in U. S.
territory.’ ” WesternGeco , 585 U. S., at ___ (slip
op., at 6) (quoting RJR Nabisco , 579 U. S., at 337). Of
course, if all the conduct “ ‘regarding [the] violations ‘took
place outside the United States,’ ” then courts do “not need
to determine . . . the statute’s ‘focus’ ” at all. RJR Nabisco , 579 U. S., at 337. In that circumstance,
there would be no domestic conduct that could be relevant to any
focus, so the focus test has no filtering role to play. See, e.g. , Nestlé , 593 U. S., at ___ (slip op., at
5); Kiobel , 569 U. S., at 124.

															B

															With this well-established framework in mind,
the first question is whether the relevant provisions of the Lanham
Act, see §§1114(1)(a), 1125(a)(1), provide “a clear, affirmative
indication” that they apply extraterritorially, RJR Nabisco ,
579 U. S., at 337.[ 3 ] They
do not.

															It is a “rare statute that clearly evidences
extraterritorial effect despite lacking an express statement of
extraterritoriality.” Id. , at 340. Our decision in RJR
Nabisco illustrates the clarity required at step one of our
framework. There, we held that the Racketeer Influenced and Corrupt
Organizations Act could have extraterritorial application in some
circumstances because many of its predicate offenses “plainly apply
to at least some foreign conduct” and “[a]t least one predicate
. . . applies only to conduct occurring outside
the United States.” Id. , at 338.

															Here, neither provision at issue provides an
express statement of extraterritorial application or any other
clear indication that it is one of the “rare” provisions that
nonetheless applies abroad. Both simply prohibit the use “in
commerce,” under congressionally prescribed conditions, of
protected trademarks when that use “is likely to cause confusion.”
§§1114(1)(a), 1125(a)(1).

															Hetronic acknowledges that neither provision on
its own signals extraterritorial application, but it argues that
the requisite indication can be found in the Lanham Act’s
definition of “commerce,” which applies to both provisions. Under
that definition, “ ‘commerce’ means all commerce which may
lawfully be regulated by Congress.” §1127. Hetronic offers two
reasons why this definition is sufficient to rebut the presumption
against extraterritoriality. First, it argues that the language
naturally leads to this result because Congress can lawfully
regulate foreign conduct under the Foreign Commerce Clause. Second,
it contends that extraterritoriality is confirmed by the fact that
this definition is unique in the U. S. Code and thus differs
from what it describes as “boilerplate” definitions of
“ ‘commerce’ ” in other statutes. Brief for Respondent
23.

															Neither reason is sufficient. When applying the
presumption, “ ‘we have repeatedly held that even statutes
. . . that expressly refer to “ foreign commerce” ’ ” when defining “commerce” are not
extraterritorial. Morrison , 561 U. S., at 262–263; see
also RJR Nabisco , 579 U. S., at 344. This conclusion
dooms Hetronic’s argument. If an express statutory reference to
“foreign commerce” is not enough to rebut the presumption, the same
must be true of a definition of “commerce” that refers to
Congress’s authority to regulate foreign commerce. That result does
not change simply because the provision refers to “all” commerce
Congress can regulate. See Kiobel , 569 U. S., at 118
(“[I]t is well established that generic terms like ‘any’ or ‘every’
do not rebut the presumption against extraterritoriality”). And the
mere fact that the Lanham Act contains a substantively similar
definition that departs from the so-called “boilerplate”
definitions used in other statutes cannot justify a different
conclusion either.

															C

															Because §1114(1)(a) and §1125(a)(1) are not
extraterritorial, we must consider when claims involve “domestic”
applications of these provisions. As discussed above, the proper
test requires determining the provision’s focus and then
ascertaining whether Hetronic can “establish that ‘the conduct
relevant to [that] focus occurred in the United States.’ ” Nestlé , 593 U. S., at ___–___ (slip op., at 3–4).

															Much of the parties’ dispute in this case misses
this critical point and centers on the “focus” of the relevant
provisions without regard to the “conduct relevant to that focus.” WesternGeco , 585 U. S., at ___ (slip op., at 5).
Abitron contends that §1114(1)(a) and §1125(a)(1) focus on
preventing infringing use of trademarks, while Hetronic argues that
they focus both on protecting the goodwill of mark owners and on
preventing consumer confusion. The United States as amicus
curiae argues that the provisions focus on only likely consumer
confusion.

															The parties all seek support for their positions
in Steele v. Bulova Watch Co. , 344 U.S.
280 (1952), but that decision is of little assistance here.
There, we considered a suit alleging that the defendant, through
activity in both the United States and Mexico, had violated the
Lanham Act by producing and selling watches stamped with a
trademark that was protected in the United States. Although we
allowed the claim to proceed, our analysis understandably did not
follow the two-step framework that we would develop decades later.
Our decision was instead narrow and factbound. It rested on the
judgment that “the facts in the record . . . when viewed
as a whole” were sufficient to rebut the presumption against
extraterritoriality. Id. , at 285. In reaching this
conclusion, we repeatedly emphasized both that the defendant
committed “essential steps” in the course of his infringing conduct
in the United States and that his conduct was likely to and did
cause consumer confusion in the United States.[ 4 ] Id. , at 286–287; accord, e.g. , id. , at 286 (“His operations and their effects were not
confined within the territorial limits of a foreign nation”); id. , at 288 (“[P]etitioner by his ‘own deliberate acts, here
and elsewhere, brought about forbidden results within the United
States’ ” (alteration omitted)). Because Steele implicated both domestic conduct and a likelihood of domestic
confusion, it does not tell us which one determines the domestic
applications of §1114(1)(a) and §1125(a)(1).

															With Steele put aside, then, we think the
parties’ particular debate over the “focus” of §1114(1)(a) and
§1125(a)(1) in the abstract does not exhaust the relevant inquiry.
The ultimate question regarding permissible domestic application
turns on the location of the conduct relevant to the focus. See, e.g. , RJR Nabisco , 579 U. S., at 337. And the conduct relevant to any focus the parties have proffered is
infringing use in commerce, as the Act defines it.

															This conclusion follows from the text and
context of §1114(1)(a) and §1125(a)(1). Both provisions prohibit
the unauthorized use “in commerce” of a protected trademark when,
among other things, that use “is likely to cause confusion.”
§§1114(1)(a), 1125(a)(1). In other words, Congress proscribed the
use of a mark in commerce under certain conditions. This conduct,
to be sure, must create a sufficient risk of confusion, but
confusion is not a separate requirement; rather, it is simply a
necessary characteristic of an offending use.[ 5 ] Because Congress has premised liability on a
specific action (a particular sort of use in commerce), that
specific action would be the conduct relevant to any focus on offer
today. See, e.g. , WesternGeco , 585 U. S., at
___–___ (slip op., at 6–8).

															In sum, as this case comes to us, “use in
commerce” is the conduct relevant to any potential focus of
§1114(1)(a) and §1125(a)(1) because Congress deemed a violation of
either provision to occur each time a mark is used in commerce in
the way Congress described, with no need for any actual confusion.
Under step two of our extraterritoriality standard, then, “use in
commerce” provides the dividing line between foreign and domestic
applications of these Lanham Act provisions.

															III

															Resisting this straightforward application of
our precedent, Justice Sotomayor concludes that step two of our
extraterritoriality framework turns solely on whether “the object
of the statute’s focus is found in, or occurs in, the United
States.” Post , at 5 (opinion concurring in judgment).
Applied to the Lanham Act, the upshot of this focus-only standard
is that any claim involving a likelihood of consumer
confusion in the United States would be a “domestic” application of
the Act. This approach is wrong, and it would give the Lanham Act
an untenably broad reach that undermines our extraterritoriality
framework.

															A

															To justify looking only to a provision’s
“focus,” Justice Sotomayor maintains that “an application of a
statute” can still be domestic “when foreign conduct is
implicated.” Post , at 7. If this assertion simply means that
a permissible domestic application can occur even when some foreign
“activity is involved in the case,” Morrison , 561
U. S., at 266, then it is true but misses the point. When a
claim involves both domestic and foreign activity, the question is
whether “ ‘the conduct relevant to the statute’s focus
occurred in the United States.’ ” Nestlé , 593
U. S., at ___–___ (slip op., at 3–4). If that “ ‘conduct
. . . occurred in the United States, then the case
involves a permissible domestic application’ of the statute ‘even
if other conduct occurred abroad.’ ” WesternGeco , 585
U. S., at ___ (slip op., at 6). But “if the conduct
relevant to the focus occurred in a foreign country, then the case
involves an impermissible extraterritorial application regardless
of any other conduct that occurred in U. S. territory.” RJR
Nabisco , 579 U. S., at 337; see, e.g. , WesternGeco , 585 U. S., at ___ (slip op., at 6–8); Nestlé , 593 U. S., at ___–___ (slip op., at 4–5); Morrison , 561 U. S., at 266–267, 271–273.

															These holdings were not, as Justice Sotomayor
suggests, premised on this Court’s “first conclud[ing] (or
assum[ing] without deciding) that the focus of the provision at
issue was conduct.” Post , at 9. They were
unambiguously part of this Court’s articulation of the two-step
framework, and, in each case, these holdings came before we
began analyzing the focus of the provisions at issue. For this
reason, none of our cases has ever held that statutory focus was
dispositive at step two of our framework. To the contrary, we have
acknowledged that courts do “not need to determine [a] statute’s
‘focus’ ” when all conduct regarding the violations
“ ‘took place outside the United States.’ ” RJR
Nabisco , 579 U. S., at 337 (quoting Kiobel , 569
U. S., at 124); see, e.g. , Nestlé , 593
U. S., at ___ (slip op., at 5) (“To plead facts sufficient to
support a domestic application of the [Alien Tort Statute],
plaintiffs must allege more domestic conduct than general corporate
activity”). That conclusion, as well as the decisions applying it,
are inexplicable under a focus-only standard. See supra , at
5.

															Beyond straying from established precedent, a
focus-only approach would create headaches for lower courts
required to grapple with this new approach. For statutes (like this
one) regulating conduct, the location of the conduct relevant to
the focus provides a clear signal at both steps of our two-step
framework. See RJR Nabisco , 579 U. S., at 335, 337.
Under Justice Sotomayor’s standard, by contrast, litigants and
lower courts are told that the step-two inquiry turns on the
“ ‘focus’ ” alone, which (as we have said) “can be
‘conduct,’ ‘parties,’ or ‘interests’ that Congress sought to
protect or regulate.” Post , at 8; see WesternGeco ,
585 U. S., at ___ (slip op., at 6). As a result, almost any
claim involving exclusively foreign conduct could be repackaged as
a “domestic application.” And almost any claim under a
non-extraterritorial provision could be defeated by labeling it a
“foreign application,” even if the conduct at issue was exclusively
domestic. This is far from the measure of certainty that the
presumption against extraterritoriality is designed to provide.

															B

															Justice Sotomayor’s expansive understanding of
the Lanham Act’s domestic applications threatens to negate the
presumption against extraterritoriality. In Morrison , we
warned that “the presumption against extraterritorial application
would be a craven watchdog indeed if it retreated to its kennel
whenever some domestic activity is involved in the case.”
561 U. S., at 266. If a claim under the Act involves a
domestic application whenever particular “ ‘effects are likely
to occur in the United States,’ ” post , at 5–6, the
watchdog is nothing more than a muzzled Chihuahua. Under such a
test, it would not even be necessary that “some” domestic activity
be involved. It would be enough for there to be merely a likelihood of an effect in this country. Applying
that standard here would require even less connection to the United
States than some explicitly extraterritorial statutes, which must
have, at a minimum, actual domestic effects to be invoked. See, e.g. , Hartford Fire Ins. Co. v. California , 509 U.S.
764 , 796 (1993) (holding that the extraterritorial provision at
issue “applies to foreign conduct that was meant to produce and did
in fact produce some substantial effect in the United States”).

															This approach threatens “ ‘international
discord.’ ” Kiobel , 569 U. S., at 115. In nearly
all countries, including the United States, trademark law is
territorial— i.e. , “a trademark is recognized as having a
separate existence in each sovereign territory in which it is
registered or legally recognized as a mark.” 5 McCarthy §29:1, at
29–4 to 29–5. Thus, each country is empowered to grant trademark
rights and police infringement within its borders. See, e.g. , ibid. ; Ingenohl v. Olsen &
Co. , 273 U.S.
541 , 544 (1927); A. Bourjois & Co. v. Katzel , 260 U.S.
689 , 692 (1923).

															This principle has long been enshrined in
international law. Under the Paris Convention for the Protection of
Industrial Property, July 14, 1967, 21 U. S. T. 1583,
T. I. A. S. No. 6923, a “mark duly registered in a
country of the Union shall be regarded as independent of marks
registered in other countries of the Union,” and the seizure of
infringing goods is authorized “on importation” to a country “where
such mark or trade name is entitled to legal protection.” Arts.
6(3), 9(1), id. , at 1639, 1647. The Convention likewise
provides mechanisms for trademark holders to secure trademark
protection in other countries under the domestic law of those
countries. Arts. 2(1), 4(1)–(2), id. , at 1631–1632; see also
5 McCarthy §29:1, at 29–6 to 29–7; Protocol Relating to Madrid
Agreement Concerning International Registration of Marks, June 27,
1989, T. I. A. S. No. 03–112, S. Treaty Doc. No.
106–41 (entered into force Dec. 1, 1995) (providing mechanisms for
the extension of trademark protection to multiple jurisdictions
under domestic law). The Lanham Act, which is designed to implement
“treaties and conventions respecting trademarks,” §1127,
incorporates this territorial premise, mandating that registration
of a foreign trademark in the United States “shall be independent
of the registration in the country of origin” and that the rights
of that mark in the United States are governed by domestic law,
§1126(f ).

															Because of the territorial nature of trademarks,
the “probability of incompatibility with the applicable laws of
other counties is so obvious that if Congress intended such foreign
application ‘it would have addressed the subject of conflicts with
foreign laws and procedures.’ ” Morrison , 561
U. S., at 269. The use of a mark—even confined to one
country—will often have effects that radiate to any number of
countries. And when determining exactly what form of abstract
consumer confusion is sufficient in a given case, the Judiciary
would be thrust into the unappetizing task of “navigating foreign
policy disputes belong[ing] to the political branches.” Jesner v. Arab Bank, PLC , 584 U. S. ___, ___
(2018) (Gorsuch, J., concurring in part and concurring in judgment)
(slip op., at 1). If enough countries took this approach, the
trademark system would collapse.

															This tension has not been lost on other
sovereign nations. The European Commission gravely warns this Court
against applying the Lanham Act “to acts of
infringement occurring . . . in the European Union”
and outside of the United States. Brief for European Commission on
Behalf of the European Union as Amicus Curiae 4 (emphasis
added). To “police allegations of infringement occurring in
Germany,” it continues, would be an “unseemly” act of “meddling in
extraterritorial affairs,” given “international treaty obligations
that equally bind the United States.” Id. , at 28. As the
Commission and other foreign amici recognize, the “system
only works if all participating states respect their obligations,
including the limits on their power.” Id. , at 29; see also, e.g. , Brief for German Law Professors as Amici Curiae 12; Brief for Guido Westkamp as Amicus Curiae 2–3. It thus
bears repeating our longstanding admonition that “United States law
governs domestically but does not rule the world.” Microsoft
Corp. , 550 U. S., at 454.

															IV

															In sum, we hold that §1114(1)(a) and
§1125(a)(1) are not extraterritorial and that the infringing “use
in commerce” of a trademark provides the dividing line between
foreign and domestic applications of these provisions. Under the
Act, the “term ‘use in commerce’ means the bona fide use of a mark
in the ordinary course of trade,” where the mark serves to
“identify and distinguish [the mark user’s] goods . . .
and to indicate the source of the goods.” §1127.[ 6 ] Because the proceedings below were not in
accord with this understanding of extraterritoriality, we vacate
the judgment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.

															It is so ordered. Notes 1 The foreign companies are
Abitron Germany GmbH, Abitron Austria GmbH, Hetronic Germany GmbH,
Hydronic-Steuersysteme GmbH, and ABI Holding GmbH. 2 As we have noted, courts
may take these steps in any order. See, e.g. , Yegiazaryan v. Smagin , 599 U. S. ___, ___–___,
n. 2 (2023) (slip op., at 6–7, n. 2). 3 Our cases sometimes refer
to whether the “statute” applies extraterritorially, but the
two-step analysis applies at the level of the particular provision
implicated. See, e.g. , RJR Nabisco , 579 U. S.,
at 346; Morrison v. National Australia Bank Ltd. , 561 U.S.
247 , 264–265 (2010). 4 For example, we noted
that the trademark owner’s “Texas sales representative received
numerous complaints from [American] retail jewelers . . .
whose customers brought in for repair defective” branded watches. Steele , 344 U. S., at 285; accord, Bulova Watch
Co. v. Steele , 194 F.2d 567, 571 (CA5
1952). 5 Both provisions “refer to
a ‘likelihood’ of harm, rather than a completed harm.” Moseley v. V Secret Catalogue, Inc. , 537 U.S.
418 , 432 (2003). In other words, “actual confusion is not
necessary in order to prove infringement.” Restatement (Third) of
Unfair Competition §23, at 250, Comment b (1993); accord, id. , §23, at 251, Comment d ; 4 J. McCarthy,
Trademarks and Unfair Competition §23:12, at 23–157 (5th ed. 2023)
(McCarthy) (“ ‘[I]t is black letter law that actual confusion
need not be shown to prevail under the Lanham Act, since
. . . the Act requires only a likelihood of
confusion’ ”). Instead, the provisions treat confusion as a
means to limit liability to only certain “bona fide use[s] of a
mark in the ordinary course of trade.” 15 U. S. C. §1127
(defining “use in commerce”); see Patent and Trademark
Office v. Booking.com B. V. , 591 U. S. ___, ___
(2020) (slip op., at 12) (“[A] competitor’s use does not infringe a
mark [under §1114(1)(a) and §1125(a)(1)] unless it is likely to
confuse consumers”). 6 Justice Jackson has
proposed a further elaboration of “use in commerce,” see post , at 1–4 (concurring opinion), but we have no occasion
to address the precise contours of that phrase here. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–1043

															_________________

															ABITRON AUSTRIA GmbH, et al., PETITIONERS v. HETRONIC INTERNATIONAL, INC.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2023]

															Justice Jackson, concurring.

															I agree with the Court that 15
U. S. C. §1114(1)(a) and §1125(a)(1) do not apply
extraterritorially. Ante , at 7. I also agree that the
“ ‘use in commerce’ of a trademark” that both statutory
sections describe “provides the dividing line between foreign and
domestic applications” of these provisions. Ante , at 14. The
Court has no need to elaborate today upon what it means to “use [a
trademark] in commerce,” §1127, nor need it discuss how that
meaning guides the permissible-domestic-application question in a
particular case. I write separately to address those points.

															It is clear beyond cavil that what makes a
trademark a trademark under the Lanham Act is its
source-identifying function. See Jack Daniel’s Properties,
Inc. v. VIP Products LLC , 599 U. S. ___, ___ (2023)
(slip op., at 3); Qualitex Co. v. Jacobson Products
Co. , 514 U.S.
159 , 162–163 (1995). That is, under the Act, a trademark is
“any word, name, symbol, or device, or any combination thereof,”
that “a person” “use[s]” or “inten[ds] to use” “to identify and
distinguish his or her goods . . . from those
manufactured or sold by others and to indicate the source of the
goods.” §1127; see also Qualitex Co. , 514 U. S., at
162–163 (emphasizing centrality of this source-identifying
function). Sections 1114(1)(a) and 1125(a)(1) permit a mark owner
to sue someone who is “us[ing that] mark in commerce” in a way
“ ‘likely to cause confusion, or to cause mistake, or to
deceive.’ ” B&B Hardware, Inc. v. Hargis
Industries, Inc. , 575 U.S. 138, 144 (2015).

															Critically, the Act defines “ ‘use in
commerce’ ” as “the bona fide use of a mark in the ordinary
course of trade.” §1127. And, in light of the core
source-identifying function of marks, Congress’s statutory scheme
embodies a distinction between trademark uses (use of a
symbol or equivalent “ ‘to identify or brand [a defendant’s]
goods or services’ ”) and “ ‘non-trademark uses’ ”
(use of a symbol—even the same one—“ in a
‘non-source-identifying way’ ”). Jack Daniel’s , 599
U. S., at ___ (slip op., at 13). This all points to something
key about what it means to use a trademark in the sense Congress
prohibited— i.e. , in a way likely to commit the “cardinal
sin” of “confus[ing] consumers about source.” Id ., at ___
(slip op., at 14).

															Simply put, a “use in commerce” does not cease
at the place the mark is first affixed, or where the item to which
it is affixed is first sold. Rather, it can occur wherever the mark
serves its source-identifying function. So, even after a trademark
begins to be “use[d] in commerce” (say, when goods on which it is
placed are sold), that trademark is also “use[d] in commerce”
wherever and whenever those goods are in commerce, because as long
as they are, the trademark “identif[ies] and distinguish[es]
. . . the source of the goods.” §1127. Such a use is not
free-floating; the trademark is being used by the “person”
who put that trademark on the goods “to identify and distinguish”
them in commerce and “indicate the[ir] source.” Ibid . This
is the “use in commerce” to which §1114(1)(a) and §1125(a)(1)
refer.

															Because it is “use in commerce”—as Congress has
defined it—that “provides the dividing line between foreign and
domestic applications of ” these provisions, ante , at
14, the permissible-domestic-application inquiry ought to be
straightforward. If a marked good is in domestic commerce, and the
mark is serving a source-identifying function in the way Congress
described, §1114(1)(a) and §1125(a)(1) may reach the “person,”
§1127, who is “us[ing that m]ark as a trademark,” Jack
Daniel’s , 599 U. S., at ___ (slip op., at 14). But if the
mark is not serving that function in domestic commerce, then
the conduct Congress cared about is not occurring domestically, and
these provisions’ purely domestic sweep cannot touch that
person.

															Consider an example. Imagine that a German
company begins making and selling handbags in Germany marked
“Coache” (the owner’s family name). Next, imagine that American
students buy the bags while on spring break overseas, and upon
their return home employ those bags to carry personal items.
Imagine finally that a representative of Coach (the United States
company) sees the students with the bags and persuades Coach to sue
the German company for Lanham Act infringement, fearing that the
“Coache” mark will cause consumer confusion. Absent additional
facts, such a claim seeks an impermissibly extraterritorial
application of the Act. The mark affixed to the students’ bags is
not being “use[d] in commerce” domestically as the Act understands
that phrase: to serve a source-identifying function “in the
ordinary course of trade,” §1127.

															Now change the facts in just one respect: The
American students tire of the bags six weeks after returning home,
and resell them in this country, confusing consumers and damaging
Coach’s brand. Now , the marked bags are in domestic
commerce; the marks that the German company affixed to them
overseas continue “to identify and distinguish” the goods from
others in the (now domestic) marketplace and to “indicate the
source of the goods.” Ibid. So the German company continues
to “use [the mark] in commerce” within the meaning of the Act, thus
triggering potential liability under §1114(1)(a) and §1125(a)(1).
This result makes eminent sense given the source-identifying
function of a trademark.[ 1 ]

															In brief, once the marks on its bags are serving
their core source-identifying function in commerce in the United
States, this German company is doing—domestically—exactly what
Congress sought to proscribe. Accordingly, the German company may
be subject to liability for this domestic conduct— i.e. , it
cannot successfully obtain dismissal of the lawsuit on
extraterritoriality grounds—even though it never sold the bags in,
or directly into, the United States.[ 2 ]

															Guided by this understanding of “use in
commerce,” I join the Court’s opinion in full. Notes 1 Trademarks facilitate the
accumulation of business goodwill whenever and wherever marked
goods are in commerce. The manufacturer of source-marked goods
reaps a goodwill benefit to the extent that consumers like its
product, see Two Pesos, Inc. v. Taco Cabana, Inc. , 505 U.S.
763 , 774 (1992), and that benefit runs to the manufacturer
whenever a trademark is serving a source-identifying function with
respect to items in commerce—however that commercial status came to
be. 2 I will not attempt to
discuss every way in which a marked item might be “in commerce”
such that the trademark is being used “in the ordinary course of
trade” domestically. §1127. But, in the internet age, one could
imagine a mark serving its critical source-identifying function in
domestic commerce even absent the domestic physical presence of the
items whose source it identifies. See, e.g., 5 J. McCarthy,
Trademarks and Unfair Competition §29:56 (5th ed. Supp. 2023) (“The
use of an infringing mark as part of an Internet site available for
use in the United States may constitute an infringement of the mark
in the United States”); 4 id. , §25:54.50 (“When an alleged
infringing mark is used on the internet, the use is clearly a ‘use
in commerce’ ”); 1 id. , §3:7 (discussing “evidence of
use as a trademark” where “a designation is prominently displayed
in a way easily recognized by web users as an indicator of origin”;
accord, In re Sones , 590 F.3d 1282, 1288 (CA Fed. 2009)
(observing, with respect to the use-in-commerce requirement, that a
“ ‘website [can be] an electronic retail store, and the web
page [can be] a shelf-talker or banner which encourages the
consumer to buy the product’ ”). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 21–1043

															_________________

															ABITRON AUSTRIA GmbH, et al., PETITIONERS v. HETRONIC INTERNATIONAL, INC.

															on writ of certiorari to the united states
court of appeals for the tenth circuit

															[June 29, 2023]

															Justice Sotomayor, with whom The Chief
Justice, Justice Kagan, and Justice Barrett join, concurring in the
judgment.

															Sections 32(1)(a) and 43(a)(1)(A) of the Lanham
Act prohibit trademark infringement and unfair competition
activities that are “likely to cause confusion, or to cause
mistake, or to deceive.” 60Stat. 437, 441, as amended, 15
U. S. C. §§1114(1)(a), 1125(a)(1)(A).[ 1 ] The issue in this case is whether, and to what
extent, these provisions apply to activities that occur in a
foreign country. I agree with the majority’s conclusion that the
decision below must be vacated. I disagree, however, with the
extraterritoriality framework that the Court adopts today. In my
view, §§32(1)(a) and 43(a)(1)(A) of the Lanham Act extends to
activities carried out abroad when there is a likelihood of
consumer confusion in the United States.

															I

															This Court previously considered the
extraterritoriality of the Lanham Act in Steele v. Bulova
Watch Co ., 344 U.S.
280 (1952). There, the Court applied the Lanham Act to
trademark infringement and unfair competition activities that
occurred abroad but confused consumers in the United States. See id., at 281, 286–287. Because the Court decided Steele 70 years ago, it had no occasion to apply the
two-step framework that the Court has since developed for
evaluating the extraterritorial reach of a statute. A proper
application of that framework, however, leads to a result
consistent with Steele : Although there is no clear
indication that the Lanham Act provisions at issue rebut the
presumption against extraterritoriality at step one, a domestic
application of the statute can implicate foreign conduct at step
two, so long as the plaintiff proves a likelihood of consumer
confusion domestically.

															A

															In Steele , the Bulova Watch Company,
Inc., a New York corporation that marketed watches under the
registered U. S. mark “Bulova,” sued Sidney Steele, a
U. S. citizen and resident of Texas with a watch business in
Mexico City. Id ., at 281, 284. Upon discovering that the
mark “Bulova” was not registered in Mexico, Steele obtained the
Mexican registration of the mark, assembled watches in Mexico using
component parts he had procured from the United States and
Switzerland, and “stamped his watches with ‘Bulova’ and sold them
as such.” Id. , at 281, 284–285. As a result, “spurious
‘Bulovas’ filtered through the Mexican border into this country,”
causing a Bulova Watch Company’s sales representative in the United
States to “receiv[e] numerous complaints from retail jewelers in
the Mexican border area [of Texas] whose customers brought in for
repair defective ‘Bulovas’ which upon inspection often turned out
not to be products of that company.” Id ., at 285–286. Steele
“committed no illegal acts within the United States.” Id., at 282.

															The Court held that, because Steele’s
“operations and their effects were not confined within the
territorial limits of a foreign nation,” the Lanham Act applied to
Steele’s activities. Id., at 286. The Court emphasized that
Steele’s conduct had the potential to “reflect adversely on Bulova
Watch Company’s trade reputation” in the United States. Ibid . By contrast, the fact that Steele “affixed the mark
‘Bulova’ in Mexico City rather than here” was not “material.” Id. , at 287.

															B

															Following Steele , the Courts of Appeals
developed various tests, modeled after Steele ’s facts, to
address the Lanham Act’s extraterritorial reach.[ 2 ] This Court also subsequently adopted a
two-step framework for determining when a statute can apply
extraterritorially to foreign conduct. That framework implements “a
canon of statutory construction known as the presumption against
extraterritoriality.” RJR Nabisco, Inc. v . European
Community, 579 U.S. 325, 335 (2016). The presumption reflects
the “longstanding principle of American law that legislation of
Congress, unless a contrary intent appears, is meant to apply only
within the territorial jurisdiction of the United States.” Morrison v . National Australia Bank Ltd. , 561 U.S.
247 , 255 (2010) (internal quotation marks omitted). That is,
courts presume that, “in general, ‘United States law governs
domestically but does not rule the world.’ ” RJR
Nabisco , 579 U. S., at 335 (quoting Microsoft Corp. v . AT&T Corp ., 550 U.S.
437 , 454 (2007)).

															Under this framework, the Court first asks
“whether the presumption against extraterritoriality has been
rebutted” by “a clear, affirmative indication that [the statute]
applies extraterritorially.” RJR Nabisco , 579 U. S., at
337. If the presumption is not rebutted at that first step, the
Court then proceeds to determine at step two “whether the case
involves a domestic application of the statute.” Ibid. To
determine whether a domestic application exists, the Court must
ascertain the statute’s “focus,” i.e ., “the objec[t] of the
statute’s solicitude.” Morrison , 561 U. S., at
266–267.

															As I explain below, although I agree with the
result the Court reaches with respect to the first step, I disagree
with its analysis at step two.

															1

															Sections 32(1)(a) and 43(a)(1)(A) of the
Lanham Act impose civil liability on a defendant who “use[s] in
commerce” a trademark in a manner that is “likely to cause
confusion, or to cause mistake, or to deceive.” 15
U. S. C. §§1114(1)(a), 1125(a)(1)(A). The Act in turn
defines “commerce” as “all commerce which may lawfully be regulated
by Congress.” §1127.

															Under this Court’s precedents, this language is
insufficient to rebut the presumption against extraterritoriality
at step one. The Court has “repeatedly held that even statutes that
contain broad language in their definitions of ‘commerce’ that
expressly refer to ‘ foreign commerce’ do not apply abroad”
to all foreign conduct. Morrison , 561 U. S., at 262–263
(internal quotation marks omitted); see also RJR Nabisco ,
579 U. S., at 344 (a statute’s reference to “foreign commerce”
does not “mean literally all commerce occurring abroad”). The Court
has also explained “that generic terms like ‘any’ or ‘every’ do not
rebut the presumption.” Kiobel v. Royal Dutch Petroleum
Co ., 569
U.S. 108 , 118 (2013). The term “all” is not meaningfully
different. While “the word conveys breadth,” Peter v .
NantKwest, Inc. , 589 U. S. ___, ___ (2019) (slip op., at
7), it does not rebut the presumption either.

															2

															The Court’s inquiry at step two centers on the
“focus” of the statutory provisions. Like the Court’s analysis at
step one, this inquiry is contextual; the Court “do[es] not analyze
the provision at issue in a vacuum.” WesternGeco LLC v .
ION Geophysical Corp ., 585 U. S. ___, ___ (2018) (slip
op., at 6). Rather, the Court looks at the provision “in concert”
with other relevant provisions and considers “how the statute has
actually been applied.” Ibid. The aim of determining the
statutory focus is to assess what constitutes a domestic
application of the statute. An application is domestic when the
object of the statute’s focus is found in, or occurs in, the United
States. See, e.g. , Morrison , 561 U. S., at
266–267, 273 (where the “focus of the Exchange Act” is “purchases
and sales of securities,” there is no domestic application of the
statute when those purchases and securities “occurred outside the
United States,” regardless of “the place where the deception
originated”).

															The parties offer different interpretations of
the focus of §§32(1)(a) and 43(a)(1)(A). Petitioners argue that the
focus of the statute is the “use” of the mark “in commerce.” Brief
for Petitioners 39. Under petitioners’ theory, the Lanham Act does
not reach any infringing products sold abroad; instead, the
defendant must sell the products directly into the United States. Id., at 44–45. Respondent, by contrast, argues that the Act
has two distinct focuses: protecting mark owners from reputational
harm and protecting consumers from confusion. Brief for Respondent
45–48. Under respondent’s view, reputational harm to the mark owner
“is not necessarily tied to the locus of [consumer] confusion or
the locus of the [defendant’s] conduct.” Id., at 47.
Instead, respondent asserts, harm to a mark owner’s reputation “is
felt where [the mark owner] resides.” Ibid. The Government,
as amicus curiae supporting neither party, offers a middle
ground. In its view, the focus of the statute is consumer
confusion. See Brief for United States as Amicus Curiae 14
(United States Brief ). Accordingly, “[w]here such effects are
likely to occur in the United States, application of Sections
32(1)(a) and 43(a)(1)(A) is a permissible domestic application of
the Act, even if the defendant’s own conduct occurred elsewhere.” Ibid. I agree with the Government’s position. Sections
32(1)(a) and 43(a)(1)(A) of the Act prohibit specific types of
“use[s] in commerce”: uses that are “likely to cause confusion, or
to cause mistake, or to deceive.” 15 U. S. C.
§§1114(1)(a), 1125(a)(1)(A). The statute thus makes clear that
prohibiting the use in commerce is “merely the means by which the
statute achieves its end” of protecting consumers from confusion. WesternGeco LLC, 585 U. S., at ___ (slip op., at 8).
Stated differently, “a competitor’s use does not infringe a mark
unless it is likely to confuse consumers.” Patent and Trademark
Office v. Booking.com B.V. , 591 U. S. ___, ___
(2020) (slip op., at 12); see 4 J. McCarthy, Trademarks and Unfair
Competition §23:1, p. 23–9 (5th ed. 2023) (McCarthy)
(“[L]ikelihood of confusion is the keystone of trademark
infringement”). Because the statute’s focus is protection against
consumer confusion, the statute covers foreign infringement
activities if there is a likelihood of consumer confusion in the
United States and all other conditions for liability are
established. See infra, at 12.

															Treating consumer confusion as the focus of the
Act is consistent with Steele , which focused on the domestic
“effects” of the defendant’s foreign conduct. 344 U. S., at
286. Steele emphasized that, although the defendant did not
affix the mark or sell the products in the United States, “spurious
‘Bulovas’ filtered through the Mexican border into this country,”
causing consumer confusion here. Id ., at 285–287. These
domestic effects, the Court reasoned, could “reflect adversely on
Bulova Watch Company’s trade reputation” in the United States. Id., at 286. In other words, consistent with the statutory
text, Steele focused on the impact of the defendant’s
foreign conduct on the consumer market in the United States (in
accord with the Government’s view here), not the location of the
original sale of the infringing product or the location of the
trademark owner’s business (contrary to petitioners’ and
respondent’s views here).

															The Court’s precedent also supports the view
that an application of a statute can be considered domestic even
when foreign conduct is implicated. In Morrison , for
example, the Court concluded that §10(b) of the Securities Exchange
Act of 1934, 48Stat. 891, “does not punish deceptive conduct, but
only deceptive conduct ‘in connection with the purchase or sale
of ’ ” securities in the United States. 561 U. S.,
at 266 (quoting 15 U. S. C. §78j(b)). Thus, “the focus of
the Exchange Act is not upon the place where the deception
originated, but upon purchases and sales of securities in the
United States.” 561 U. S., at 266. “Those purchase-and-sale
transactions are the objects of the statute’s solicitude.” Id. , at 267. Under Morrison , a domestic application
of §10(b) covers misrepresentations made abroad, so long as the
deceptive conduct bears the requisite connection to the statute’s
focus: the domestic purchase or sale of a security. Similarly,
under §§32(1)(a) and 43(a)(1)(A) of the Lanham Act, uses of a mark
in commerce are actionable when they cause a likelihood of consumer
confusion in the United States, even when the conduct originates
abroad.

															II

															The Court agrees with petitioners’ bottom line
that the Lanham Act requires a domestic “use in commerce.” See ante, at 7–10. According to the majority, the “ ‘use in
commerce’ provides the dividing line between foreign and domestic
applications of these Lanham Act provisions.” Ante, at 10.
Yet the majority does not actually take a stance on the focus of
the Act or apply this Court’s settled law. Instead, to reach its
conclusion, the majority transforms the Court’s extraterritoriality
framework into a myopic conduct-only test.

															Specifically, instead of discerning the
statute’s focus and assessing whether that focus is found
domestically, as the Court’s precedents command, the majority now
requires a third step: an assessment of whether the “conduct
relevant to the focus” occurred domestically, even when the focus
of the statute is not conduct. Ante, at 9. Making matters
even more confusing, the majority skips over the middle step of
this new framework, concluding that it is unnecessary to discern
the focus of the Lanham Act because “the conduct relevant to any
potential focus” that “the parties have proffered” must be “use in
commerce,” since that is conduct mentioned in the statute. Ibid .[ 3 ] In other words,
under the Court’s unprecedented three-step framework, no statute
can reach relevant conduct abroad, no matter the true object of the
statute’s solicitude.

															The Court’s novel approach transforms the
traditional inquiry at step two into a conduct-only test, in direct
conflict with this Court’s jurisprudence. The Court has expressly
recognized that a statute’s “focus” can be “conduct,” “parties,” or
“interests” that Congress sought to protect or regulate. WesternGeco LLC , 585 U. S., at ___ (slip op., at 8)
(internal quotation marks omitted); see also Morrison , 561
U. S., at 266 (“the focus of the Exchange Act is not upon the
place where the deception originated”). After all, not every
federal statute subject to an extraterritoriality analysis
“directly regulate[s] conduct.” Kiobel , 569 U. S., at
116.

															Because precedent does not support the Court’s
recitation of the extraterritoriality framework, the majority
retreats to a distorted reading of the Court’s past decisions. The
majority relies on RJR Nabisco , see ante , at 9, but
that case does not support the majority’s course. The Court in RJR Nabisco noted that the Racketeer Influenced and Corrupt
Organizations Act’s civil suit provision requires an “injury to
business or property.” 579 U. S., at 354. The Court then
concluded that there is a domestic application of that provision so
long as there is a “domestic injury.” Ibid . In other words,
the Court held that the focus of the statute had to occur
domestically. It did not require a third step.

															The Court also repeatedly quotes from cases
where the Court has said that a domestic application requires that
“the conduct relevant to the statute’s focus occurred in the United
States.” Ante, 4–5, 10. In those cases, however, the Court
first concluded (or assumed without deciding) that the focus of the
provision at issue was conduct, and only then proceeded to
consider whether the relevant conduct occurred domestically. In WesternGeco , for example, the Court considered the
extraterritorial application of §271(f )(2) of the Patent Act,
which formed “the basis for [the plaintiff ’s] infringement
claim.” 585 U. S., at ___ (slip op., at 7). The “focus” of
that provision, the Court concluded, is the “act of ‘suppl[ying] in
or from the United States,’ ” so the conduct “relevant to that
focus” was the defendant’s “domestic act of supplying the
components that infringed [the plaintiff ’s] patents.” Id., at ___–___ (slip op., at 7–8); see also Nestlé USA,
Inc. v . Doe , 593 U. S. ___, ___–___ (2021) (slip
op., at 4–5) (assuming without deciding that “the ‘focus’ of the
[statute] is conduct that violates international law” and then
concluding that conduct relevant to that focus “occurred in Ivory
Coast”). In other words, the Court looked to whether the focus of
the statute at issue occurred domestically.

															In sum, none of the cases upon which the
majority relies establish categorically that there must be domestic
conduct in order for there to be a domestic application of a
statute. Calling this requirement “straightforward,” “established
precedent” does not make it so. Ante, at 10–11.[ 4 ]

															The Court’s transformative approach thwarts
Congress’ ability to regulate important “interests” or “parties”
that Congress has the power to regulate. WesternGeco LLC ,
585 U. S., at ___ (slip op., at 6) . Some statutes may
have a statutory focus that is not strictly conduct and that
implicates some conduct abroad. Cf., e.g., F. Hoffmann-La Roche Ltd v . Empagran S. A ., 542 U.S.
155 , 165 (2004) (recognizing the long-established view that U.
S. antitrust laws “reflect a legislative effort to redress domestic
antitrust injury that foreign anticompetitive conduct has caused”
(emphasis deleted)). Under the Court’s new categorical rule, those
statutes may not cover relevant conduct occurring abroad, even if
that conduct impacts domestic interests that Congress sought to
protect. At bottom, by reframing the inquiry at step two as a
conduct-only test, the Court’s new rule frustrates a key function
of the presumption against extraterritoriality: to discern
congressional meaning and “preserv[e] a stable background against
which Congress can legislate with predictable effects” to protect
domestic interests, Morrison , 561 U. S., at 261,
including those of U. S. trademark owners and consumers.

															The Court’s analysis is also inconsistent with Steele . Ac-

															cording to the Court, “ Steele implicated
both domestic conduct and a likelihood of domestic confusion,” so
it offers no guidance in resolving this case. Ante, at
8 . No court of appeals has read Steele that way, and
for good reason: Steele clearly recognized that infringing
acts consummated abroad fall under the purview of the Lanham Act
when they generate consumer confusion in the United States. See supra, at 2–3, 6–7.[ 5 ]
Finding Steele “of little assistance” to its blinkered
approach, the majority reduces Steele to a “narrow” case
with no application beyond its facts. Ante, at 8 .
Steele is no such thing . It addressed the weighty
question whether the Lanham Act “extend[s] beyond the boundaries of
the United States,” 344 U. S., at 285, and has guided the
lower courts’ extraterritoriality analysis for more than 70 years.
The Court should not “put aside” the Court’s precedent merely
because it is convenient to do so. Ante, at 8.

															Because the Court cannot ground its holding in
precedent, it turns to abstract policy considerations. According to
the majority, the focus of the Lanham Act cannot center on consumer
confusion, despite Steele and the statute’s clear textual
clues, because any focus other than conduct is too uncertain and
“would create headaches for lower courts.” Ante, at 11. The
Court’s conclusion, however, is based on the incorrect assumption
that “merely a likelihood of an effect in this country” would be
sufficient to hold a defendant liable under the Act. Ante, at 12 (emphasis deleted). What the Lanham Act requires is a
likelihood of confusion in the United States, not some abstract and
undefined “effect.” The likelihood-of-confusion test comes straight
from the statute’s text. As petitioners and the Court acknowledge,
it is at the very core of the inquiry under §§32(1)(a) and
43(a)(1)(A). See Brief for Petitioners 47–48; ante , at 9.
Assessing likelihood of confusion may require a nuanced test, but
it is the test that Congress chose and that courts already
apply.

															In addition, any plaintiff would need to do more
than point to mere likelihood of confusion; as with any cause of
action, the plaintiff must establish all necessary elements for
recovery. For example, although “use in commerce” is not the
statute’s focus, the statute still requires that the plaintiff
establish a “use in commerce.” §§1114(1)(a), 1125(a)(1)(A). As Steele shows, because “commerce” includes all commerce that
Congress has the power to regulate, §1127, some foreign sales can
fall under the statute’s reach. See also RJR Nabisco , 579
U. S., at 344 (the term “ ‘foreign commerce’ ” does
not “mean literally all commerce occurring abroad,” but it includes
“commerce directly involving the United States,” including
“commerce between the United States and a foreign
country”).[ 6 ] Plaintiffs must
also generally show, for example, that their “injuries are
proximately caused by violations of the statute.” Lexmark Int’l,
Inc. v. Static Control Components, Inc. , 572 U.S.
118 , 132 (2014). The Court is thus mistaken that “abstract
consumer confusion is sufficient” to recover under the Lanham Act. Ante, at 14.

															The Court also incorrectly concludes that a test
that focuses on domestic consumer confusion conflicts with the
territoriality principle of trademark law. See ante , at
12–14. That principle recognizes that a trademark has separate
legal existence in each country where the mark “is registered or
legally recognized.” 5 McCarthy §29:1, at 29–5; see Ingenohl v . Olsen & Co ., 273 U.S.
541 , 544 (1927) (noting that a trademark secured in one country
“depend[s] for its protection” there and “confer[s] no rights”
elsewhere). Thus, to obtain the benefits that flow from trademark
rights, such as the “right to a non-confused public,” the plaintiff
must secure those rights in the country where it wants protection.
1 McCarthy §2:10, at 2–24.

															A focus on consumer confusion in the United
States is consistent with that international system. That focus
properly cabins the Act’s reach to foreign conduct that results in
infringing products causing consumer confusion domestically while
“leaving to foreign jurisdictions the authority to remedy confusion
within their territories.” United States Brief 25–26; see Brief for
European Commission on Behalf of the European Union as Amicus
Curiae 6 (“The test for infringement in the European Union,
including in Germany, like the United States, assesses whether
there is a likelihood of consumer confusion”). In other words,
applying the Lanham Act to domestic consumer confusion promotes the
benefits of U. S. trademark rights in the territory of the
United States.

															The Court’s approach, by contrast, would absolve
from liability those defendants who sell infringing products abroad
that reach the United States and confuse consumers here. That
resulting consumer confusion in the United States, however, falls
squarely within the scope of the interests that the Lanham Act
seeks to protect.[ 7 ]

															The Court’s arguments about the impending
“ international discord” that will result from the
Government’s approach are simply overblown. Ante, at 12
(internal quotation marks omitted) . There is no evidence
that Steele , which is consistent with a focus on domestic
consumer confusion, has created any international tension since it
was decided more than 70 years ago. Moreover, as even petitioners
acknowledge, purely foreign sales with no connection to the United
States are unlikely to confuse consumers domestically. See Brief
for Petitioners 44 . Foreign companies with purely foreign
operations also have at their disposal important defenses grounded
in due process and international comity principles, including the
ability to dismiss a case in the United States for lack of personal
jurisdiction or on the ground of forum non conveniens . See, e.g., Piper Aircraft Co. v . Reyno , 454 U.S.
235 , 257–261 (1981).[ 8 ]

															Finally, the Court relies upon the amicus brief filed by the European Commission in support of its concern
about the risk of international “tension” that the Government’s
position supposedly creates. Ante, at 14 . The
European Commission filed its brief in support of neither party,
however, in line with the Solicitor General’s view that a focus on
consumer confusion provides a more balanced approach that respects
international relations while protecting against trademark
infringement domestically. No “sovereign nation” filed its brief in
support of petitioners’ (and the Court’s) restricted view of step
two of the extraterritoriality analysis. Ibid. And there is
no “tension” in any event. What the European Commission “warns this
Court against,” ibid ., is adopting respondent’s sweeping
view that all foreign uses that confuse consumers abroad fall under
the scope of the Act. See Brief for European Commission on Behalf
of the European Union as Amicus Curiae 6 (explaining that
“infringement” occurs in the European Union when there is “a
likelihood of consumer confusion” there).

															*  *  *

															The Lanham Act covers petitioners’ activities
abroad so long as respondent can show that those activities are
“likely to cause confusion, or to cause mistake, or to deceive” in
the United States and can prove all elements necessary to establish
liability under the Act. 15 U. S. C. §§1114(1)(a),
1125(a)(1)(A). Because the courts below did not apply that test, I
agree vacatur and remand is required. The Court’s opinion, however,
instructs the Court on remand to apply a test that is not supported
by either the Lanham Act or this

															Court’s traditional two-step
extraterritoriality framework. I therefore concur only in the
judgment.[ 9 ] Notes 1 For simplicity, this
opinion refers to this likelihood of “confusion,” “mistake,” or
“decei[t]” as likelihood of consumer confusion. 2 See, e.g., Trader Joe’s Co. v . Hallatt , 835 F.3d 960, 969 (CA9
2016); McBee v . Delica Co ., 417 F.3d 107 , 111 (CA1 2005); International Cafe, S. A.
L. v . Hard Rock Cafe Int’l (U. S. A.), Inc ., 252 F.3d 1274 , 1278 (CA11 2001); Aerogroup Int’l, Inc. v . Marlboro Footworks, Ltd ., 152 F.3d 948 (CA Fed. 1998); Nintendo of Am., Inc. v . Aeropower Co ., 34 F.3d 246 , 250 (CA4 1994); American Rice, Inc. v .
Arkansas Rice Growers Cooperative Assn. , 701 F.2d 408, 414,
n. 8 (CA5 1983); Vanity Fair Mills, Inc. v . T. Eaton
Co ., 234 F.2d 633, 642–643 (CA2 1956). 3 Even more confusing
still, “use in commerce” is all that matters under the majority’s
conduct-only analysis even though other conduct is also listed as
actionable in at least one of the provisions at issue. 15
U. S. C. §1114(1)(a) (“the sale, offering for sale,
distribution, or advertising of any goods or
services”). 4 Relying on RJR
Nabisco, Inc. v. European Community , 579 U.S. 325
(2016), the majority argues that the Court has already
“acknowledged that courts do not need to determine [a] statute’s
‘focus’ when all conduct regarding the violations took place
outside the United States. ” Ante, at 11 (some internal
quotation marks omitted) . The portion of RJR Nabisco that the majority relies upon merely described the Court’s holding
in Kiobel v. Royal Dutch Petroleum Co ., 569 U.S.
108 (2013), a case that did not involve step two. In Kiobel , the Court held that the statute did not rebut the
presumption against extraterritoriality at step one and declined to
address step two of the analysis (including determining the
statute’s focus) because the claims at issue did not “touch and
concern the territory of the United States” other than through
“mere corporate presence.” Id ., at 124–125. Kiobel does not offer any guidance on what constitutes a domestic
application of a statute at step two. 5 It is true that Steele involved domestic conduct insofar as the defendant
exported watch parts from the United States into Mexico in
preparing to affix the infringing mark abroad. See 344 U. S.,
at 286. Yet the act of exporting those watch parts with no affixed
mark did not, without more, constitute an “illegal ac[t] within the
United States.” Id ., at 282, 287. In contrast, the defendant
committed infringing acts abroad: “[I]n Mexico City [he] stamped
his watches with ‘Bulova’ and sold them as such.” Id., at
285. The Court also did not hold that domestic exportation of
unmarked product parts is necessary for the Lanham Act to cover
foreign sales. 6 Here, there is no dispute
that the Lanham Act covers the products that petitioners sold
directly into the United States. See Brief for Petitioners 11, 41,
44–45. The dispute centers on products that petitioners sold abroad
to foreign buyers. For a portion of those products, the foreign
buyer designated the United States as the location where the
products were intended to be used. Like the watches in Steele , those products thus “ended up in the United States.”
Pet. for Cert. 6. 7 In today’s increasingly
global marketplace, where goods travel through different countries,
multinational brands have an online presence, and trademarks are
not protected uniformly around the world, limiting the Lanham Act
to purely domestic activities leaves U. S. trademark owners
without adequate protection. Cf. McBee , 417 F. 3d, at
119 (noting that “global piracy of American goods is a major
problem for American companies,” and absent some enforcement over
foreign activities, “there is a risk” that “violators will either
take advantage of international coordination problems or hide in
countries without efficacious . . . trademark laws,
thereby avoiding legal authority”). To be sure, the Court today
does not address whether a defendant operating abroad who sells
goods that reach the United States can be held liable under the
Lanham Act pursuant to contributory liability principles. See Tr.
of Oral Arg. 7–8, 20–21. Still, today’s decision significantly
waters down protections for U. S. trademark owners. It is now
up to Congress to correct the Court’s limited reading of the
Act. 8 The Court incorrectly
suggests that the Government’s position will sweep in foreign
defendants with only a minimal connection to the United States. Ante , at 12. In this case, for example, the District Court
concluded that personal jurisdiction was proper based on a forum
selection clause in the parties’ distribution agreement, which
named Okla- homa as the forum of choice, and because petitioners
purposefully directed their activities at the United States. Hetronic Int’l, Inc. v. Hetronic Germany GmbH , 2015
WL 5569035, *1–*3 (WD Okla., Sept. 22, 2015); Hetronic Int’l,
Inc. v. Hetronic Germany GmbH , 2015 WL 6835428, *2 (WD
Okla., Nov. 6, 2015). The Tenth Circuit affirmed that
determination, Hetronic Int’l, Inc. v . Hetronic Germany
GmbH , 10 F. 4th 1016, 1027–1032 (2021), which petitioners
do not challenge before this Court. 9 The jury returned a
verdict for respondent on all counts in the complaint, including
the breach of contract and tort claims under state law, and awarded
respondent more than $115 million in damages. See App. to Pet. for
Cert. 8a, 134a–137a. The Court’s decision today on the claims under
the Lanham Act does not affect the relief granted on other claims,
which petitioners do not challenge before this Court.