Domestic means the plan can only apply to actual harm in US commerce – a broader interpretation is unpredictable

//DH

II.A-B. The government agrees the Lanham Act does not apply extraterritorially. It suggests that applying the Act to a foreign sale represents a “domestic” application if the “effect” of that sale might be U.S. consumer confusion. That argument is waived and without merit. The Lanham Act requires “use in commerce.” Because the Act’s definition of “commerce” does not extend to foreign conduct, the “use in commerce” must be in the United States.

Likewise, the Act’s text and structure make clear that its “focus” is trademarks’ “use in commerce.” It is that “use” that must be domestic. The government suggests that the statute’s “focus” is consumer confusion, such that the Act is applied “domestically” to foreign conduct if that conduct has the potential “effect” of confusing U.S. consumers. But extraterritoriality is primarily concerned with conduct, not effects. The government’s standard is a test for determining when an extraterritorial law should cover foreign conduct—not distinguishing extraterritorial from domestic application. The government’s test gives the statutory term “use in commerce” inconsistent meanings. It is unpredictable, threatens international friction, and serves little practical purpose.

III.A. The Tenth Circuit’s diversion-of-foreign-sales theory—that the Lanham Act applies extraterritorially whenever U.S. plaintiffs claim lost foreign sales—distorts the Act beyond recognition. It is divorced from statutory text; exceeds the commerce power; and would impose a protectionist regime in breach of treaty obligations.