Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/28

6 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.

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