Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/26

4 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.

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.

The Court’s inquiry at step two centers on the “focus” of