Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/13

10 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.

Resisting this straightforward application of our precedent, 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.”  (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.

To justify looking only to a provision’s “focus,” maintains that “an application of a statute” can still be domestic “when foreign conduct is implicated.”  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