2023 saw several major trademark cases, including Abitron Austria GmbH et. Al. v. Hetronic International. In this case, The Supreme Court of the United States overturned a $96 million jury award and ruled that Hetronic’s trademark infringement win was invalid because federal trademark law applies only “where the claimed infringing use in commerce is domestic.”
Finnegan partner Mark Sommers told Law360, “The high court's ruling doesn't mean trademark owners have no recourse against alleged infringers whose conduct originates in another country.” He added that Justice Ketanji Brown Jackson's concurrence was instructive on that point, where she explained her understanding of what "use in commerce" means, focusing on the potential for consumer confusion.
"If a trademark, no matter where you append it, works its way into U.S. commerce and serves as a source identifier, then of course the conditions are right for a likelihood of confusion analysis to occur," Mark said. "In other words, if it's not serving as a source identifier [and] it's not in the U.S., we're not going to have a likelihood of confusion."
