La Quinta, 762 F.3d at 873. Because “the ‘use in commerce’ element of Lanham Act claims under sections 32 and 43(a) is not connected to the Lanham Act’s jurisdictional grant in 15 U.S.C. § 1121(a),” the element “is not a jurisdictional requirement, and we have subject-matter jurisdiction under 15 U.S.C. § 1121(a).” Id. at 872–73; see also Arbaugh, 546 U.S. at 516 (“[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”).

The Lanham Act’s “use in commerce” element and its broad definition of “commerce” give the statute its extraterritorial reach, and these elements derive from Congress’s power to regulate interstate and foreign commerce under the Commerce Clause. Because the “use in commerce” element of the Lanham Act is not connected to its jurisdictional grant in 15 U.S.C. 1121(a), that element is not a jurisdictional requirement.With respect to the second question, the Ninth Circuit applied a three-part test.

[28] 15 U.S.C. § 1115(a). [29] 15 U.S.C. § 1121(a). [30] 15 U.S.C. § 1072.

Unlike use of a mark in commerce, registering a mark with the USPTO gives a party the right to use the mark nationwide, even if actual sales are only limited to a small area. 15 U.S.C. § 1072. Registration constitutes nationwide constructive notice to others that the trademark is owned by the registering party, and it enables a party to bring an infringement suit in federal court. 15 U.S.C. § 1121. However, to the extent the mark is already being used by others within a specific geographic area, the prior user of the mark retains the right to use that mark within the geographic area; the party registering the mark gets the right to use it everywhere else.