Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/33

Rh to the Court, “Steele implicated both domestic conduct and a likelihood of domestic confusion,” so it offers no guidance in resolving this case. No court of appeals has read Steele that way, and for good reason: Steele clearly recognized that infringing acts consummated abroad fall under the purview of the Lanham Act when they generate consumer confusion in the United States. See,. Finding Steele “of little assistance” to its blinkered approach, the majority reduces Steele to a “narrow” case with no application beyond its facts. Steele is no such thing. It addressed the weighty question whether the Lanham Act “extend[s] beyond the boundaries of the United States,” 344 U. S., at 285, and has guided the lower courts’ extraterritoriality analysis for more than 70 years. The Court should not “put aside” the Court’s precedent merely because it is convenient to do so.

Because the Court cannot ground its holding in precedent, it turns to abstract policy considerations. According to the majority, the focus of the Lanham Act cannot center on consumer confusion, despite Steele and the statute’s clear textual clues, because any focus other than conduct is too uncertain and “would create headaches for lower courts.” The Court’s conclusion, however, is based on the incorrect assumption that “merely a likelihood of an effect in this country” would be sufficient to hold a defendant liable under the Act. (emphasis