Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/20

2 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,, 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