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A few weeks ago, we wrote about a trademark territoriality case being presented to the U.S. Supreme Court. We write now with a follow-up: the Court has agreed to hear it.

The case is Abitron Austria GmbH v. Hetronic International, Inc., and it presents an opportunity for the Court to clarify the geographic reach of the Lanham Act. The Court will decide whether the Tenth Circuit erred in applying the Lanham Act to foreign sales that did not reach the U.S. or cause confusion among U.S. consumers—an application of the Lanham Act that upheld a $90 million verdict despite 97% of the sales at issue not reaching the United States.

The decision to take the Abitron case comes on the heels of the Court denying review of Belmora v. Bayer earlier this year. The petition for review of Belmora aimed to clarify whether a plaintiff with a foreign mark could recover damages from sales made in the United States under an identical mark.

This means the Court has not provided guidance regarding domestic infringements of foreign marks, but it will now review foreign infringements of domestic marks. Will the Court’s decision in Abitron provide a sweeping clarification of the Lanham Act’s reach, covering the questions posed in Belmora? Or will the Court narrow its decision to foreign users of U.S. trademarks? Either way, it appears some clarity in the realm of trademark territoriality is on its way.

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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