Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/29

Rh product or the location of the trademark owner’s business (contrary to petitioners’ and respondent’s views here).

The Court’s precedent also supports the view that an application of a statute can be considered domestic even when foreign conduct is implicated. In Morrison, for example, the Court concluded that §10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, “does not punish deceptive conduct, but only deceptive conduct ‘in connection with the purchase or sale of’ ” securities in the United States. 561 U. S., at 266 (quoting 15 U. S. C. §78j(b)). Thus, “the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States.” 561 U. S., at 266. “Those purchase-and-sale transactions are the objects of the statute’s solicitude.” Id., at 267. Under Morrison, a domestic application of §10(b) covers misrepresentations made abroad, so long as the deceptive conduct bears the requisite connection to the statute’s focus: the domestic purchase or sale of a security. Similarly, under §§32(1)(a) and 43(a)(1)(A) of the Lanham Act, uses of a mark in commerce are actionable when they cause a likelihood of consumer confusion in the United States, even when the conduct originates abroad.

The Court agrees with petitioners’ bottom line that the Lanham Act requires a domestic “use in commerce.” See. According to the majority, the “ ‘use in commerce’ provides the dividing line between foreign and domestic applications of these Lanham Act provisions.” Yet the majority does not actually take a stance on the focus of the Act or apply this Court’s settled law. Instead, to reach its conclusion, the majority transforms the Court’s extraterritoriality framework into a myopic conduct-only test.

Specifically, instead of discerning the statute’s focus and assessing whether that focus is found domestically, as the