Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/34

12 ). What the Lanham Act requires is a likelihood of confusion in the United States, not some abstract and undefined “effect.” The likelihood-of-confusion test comes straight from the statute’s text. As petitioners and the Court acknowledge, it is at the very core of the inquiry under §§32(1)(a) and 43(a)(1)(A). See Brief for Petitioners 47–48; . Assessing likelihood of confusion may require a nuanced test, but it is the test that Congress chose and that courts already apply.

In addition, any plaintiff would need to do more than point to mere likelihood of confusion; as with any cause of action, the plaintiff must establish all necessary elements for recovery. For example, although “use in commerce” is not the statute’s focus, the statute still requires that the plaintiff establish a “use in commerce.” §§1114(1)(a), 1125(a)(1)(A). As Steele shows, because “commerce” includes all commerce that Congress has the power to regulate, §1127, some foreign sales can fall under the statute’s reach. See also RJR Nabisco, 579 U. S., at 344 (the term “ ‘foreign commerce’ ” does not “mean literally all commerce occurring abroad,” but it includes “commerce directly involving the United States,” including “commerce between the United States and a foreign country”). Plaintiffs must also generally show, for example, that their “injuries are proximately caused by violations of the statute.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U. S. 118, 132 (2014). The Court is thus mistaken that “abstract consumer confusion is sufficient” to recover under the Lanham Act.