Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/19

Rh

, concurring.

I agree with the Court that 15 U. S. C. §1114(1)(a) and §1125(a)(1) do not apply extraterritorially. 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. 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