Page:Abitron Austria GmbH v. Hetronic International, Inc..pdf/37

Rh Finally, the Court relies upon the amicus brief filed by the European Commission in support of its concern about the risk of international “tension” that the Government’s position supposedly creates. The European Commission filed its brief in support of neither party, however, in line with the Solicitor General’s view that a focus on consumer confusion provides a more balanced approach that respects international relations while protecting against trademark infringement domestically. No “sovereign nation” filed its brief in support of petitioners’ (and the Court’s) restricted view of step two of the extraterritoriality analysis. Ibid. And there is no “tension” in any event. What the European Commission “warns this Court against,” ibid., is adopting respondent’s sweeping view that all foreign uses that confuse consumers abroad fall under the scope of the Act. See Brief for European Commission on Behalf of the European Union as Amicus Curiae 6 (explaining that “infringement” occurs in the European Union when there is “a likelihood of consumer confusion” there).

The Lanham Act covers petitioners’ activities abroad so long as respondent can show that those activities are “likely to cause confusion, or to cause mistake, or to deceive” in the United States and can prove all elements necessary to establish liability under the Act. 15 U. S. C. §§1114(1)(a), 1125(a)(1)(A). Because the courts below did not apply that test, I agree vacatur and remand is required. The Court’s opinion, however, instructs the Court on remand to apply a test that is not supported by either the Lanham Act or this