OCTOBER TERM, 1991

															Syllabus

															TWO PESOS, INC. v. TACO CABANA, INC.

															CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT No. 91-971. Argued April 21, 1992-Decided June 26, 1992 Respondent, the operator of a chain of Mexican restaurants, sued
petitioner, a similar chain, for trade dress infringement under §
43(a) of the Trademark Act of 1946 (Lanham Act), which provides
that "[a]ny person who ... use[s] in connection with any goods or
services ... any false description or representation ... shall be
liable to ... any person ... damaged by [such] use." The District
Court instructed the jury, inter alia, that respondent's
trade dress was protected if it either was inherently
distinctive-i. e., was not merely descriptive-or had
acquired a secondary meaning-i. e., had come through use to
be uniquely associated with a specific source. The court entered
judgment for respondent after the jury found, among other things,
that respondent's trade dress is inherently distinctive but has not
acquired a secondary meaning. In affirming, the Court of Appeals
ruled that the instructions adequately stated the applicable law,
held that the evidence supported the jury's findings, and rejected
petitioner's argument that a finding of no secondary meaning
contradicted a finding of inherent distinctiveness. Held: Trade that is inherently distinctive is protectable
under § 43(a) without a showing that it has acquired secondary
meaning, since such trade dress itself is capable of identifying
products or services as coming from a specific source. This is the
rule generally applicable to trademarks, see, e. g., Restatement (Third) of Unfair Competition § 13, pp. 37-38, and the
protection of trademarks and of trade dress under § 43(a) serves
the same statutory purpose of preventing deception and unfair
competition. There is no textual basis for applying different
analysis to the two. Section 43(a) mentions neither and does not
contain the concept of secondary meaning, and that concept, where
it does appear in the Lanham Act, is a requirement that applies
only to merely descriptive marks and not to inherently distinctive
ones. Engrafting a secondary meaning requirement onto § 43(a) also
would make more difficult the identification of a producer with its
product and thereby undermine the Lanham Act's purposes of securing
to a mark's owner the goodwill of his business and protecting
consumers' ability to distinguish among competing producers.
Moreover, it could have anticompetitive effects by creating burdens
on the startup of small businesses. Petitioner's suggestion that
such businesses be protected by briefly dispensing with the 764 secondary meaning requirement at the outset of the trade dress'
use is rejected, since there is no basis for such requirement in §
43(a). pp.767-776. 932 F.2d
1113 , affirmed.

															WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and
SOUTER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 776. STEVENS, J., post, p. 776, and THOMAS,
J., post, p. 785, filed opinions concurring in the
judgment. Kimball J. Corson argued the cause and
filed the briefs for petitioner. Richard G. Taranto argued the cause for
respondent.

															With him on the brief were H. Bartow Farr III and James
Eliasberg. * JUSTICE WHITE delivered the opinion of the Court.

															The issue in this case is whether the trade dress 1 of a
restaurant may be protected under § 43(a) of the Trademark Act of
1946 (Lanham Act), 60 Stat. 441, 15 U. S. C. § 1125(a) * Arthur M. Handler and Ronald S. Katz filed a brief for the Private Label Manufacturers
Association as amicus curiae urging reversal. Bruce P. Keller filed a brief for the United States
Trademark Association as amicus curiae. 1 The District Court instructed the jury: "'[T]rade dress' is
the total image of the business. Taco Cabana's trade dress may
include the shape and general appearance of the exterior of the
restaurant, the identifying sign, the interior kitchen floor plan,
the decor, the menu, the equipment used to serve food, the servers'
uniforms and other features reflecting on the total image of the
restaurant." 1 App. 83-84. The Court of Appeals accepted this
definition and quoted from Blue Bell Bio-Medical v. CinBad, Inc., 864 F.2d
1253 , 1256 (CA5 1989): "The 'trade dress' of a product
is essentially its total image and overall appearance." See 932 F.2d
1113 , 1118 (CA5 1991). It "involves the total image of a
product and may include features such as size, shape, color or
color combinations, texture, graphics, or even particular sales
techniques." John H. Harland Co. v. Clarke Checks,
Inc., 711 F.2d
966 , 980 (CA111983). Restatement (Third) of Unfair
Competition § 16, Comment a (Tent. Draft No.2, Mar. 23,
1990). 765 (1982 ed.), based on a finding of inherent distinctiveness,
without proof that the trade dress has secondary meaning.

															I

															Respondent Taco Cabana, Inc., operates a chain of fastfood
restaurants in Texas. The restaurants serve Mexican food. The first
Taco Cabana restaurant was opened in San Antonio in September 1978,
and five more restaurants had been opened in San Antonio by 1985.
Taco Cabana describes its Mexican trade dress as "a festive eating atmosphere having interior dining and patio
areas decorated with artifacts, bright colors, paintings and
murals. The patio includes interior and exterior areas with the
interior patio capable of being sealed off from the outside patio
by overhead garage doors. The stepped exterior of the building is a
festive and vivid color scheme using top border paint and neon
stripes. Bright awnings and umbrellas continue the theme." 932 F.2d
1113 , 1117 (CA5 1991). In December 1985, a Two Pesos, Inc., restaurant was opened in
Houston. Two Pesos adopted a motif very similar to the foregoing
description of Taco Cabana's trade dress. Two Pesos restaurants
expanded rapidly in Houston and other markets, but did not enter
San Antonio. In 1986, Taco Cabana entered the Houston and Austin
markets and expanded into other Texas cities, including Dallas and
EI Paso where Two Pesos was also doing business.

															In 1987, Taco Cabana sued Two Pesos in the United States
District Court for the Southern District of Texas for trade dress
infringement under § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a)
(1982 ed.),2 and for theft of trade secrets

															2 Section 43(a) provides: "Any person who shall affix, apply, or
annex, or use in connection with any goods or services, or any
container or containers for goods, a false designation of origin,
or any false description or representation, including words or
other symbols tending falsely to de- 766 under Texas common law. The case was tried to a jury, which was
instructed to return its verdict in the form of answers to five
questions propounded by the trial judge. The jury's answers were:
Taco Cabana has a trade dress; taken as a whole, the trade dress is
nonfunctional; the trade dress is inherently distinctive; 3 the
trade dress has not acquired a secondary meaning 4 in the Texas
market; and the alleged infringement creates a likelihood of
confusion on the part of ordinary customers as to the source or
association of the restaurant's goods or services. Because, as the
jury was told, Taco Cabana's trade dress was protected if it either
was inherently distinctive or had acquired a secondary meaning,
judgment was entered awarding damages to Taco Cabana. In the course
of calculating damages, the trial court held that Two Pesos had
intentionally and deliberately infringed Taco Cabana's trade
dress.5

															scribe or represent the same, and shall cause such goods or
services to enter into commerce, and any person who shall with
knowledge of the falsity of such designation of origin or
description or representation cause or procure the same to be
transported or used in commerce or deliver the same to any carrier
to be transported or used, shall be liable to a civil action by any
person doing business in the locality falsely indicated as that of
origin or in the region in which said locality is situated, or by
any person who believes that he is or is likely to be damaged by
the use of any such false description or representation." 60 Stat.
441.

															This provision has been superseded by § 132 of the Trademark Law
Revision Act of 1988, 102 Stat. 3946, 15 U. S. C. § 1121.

															3 The instructions were that, to be found inherently
distinctive, the trade dress must not be descriptive.

															4 Secondary meaning is used generally to indicate that a mark or
dress "has come through use to be uniquely associated with a
specific source." Restatement (Third) of Unfair Competition § 13,
Comment e (Tent. Draft No.2, Mar. 23, 1990). "To establish
secondary meaning, a manufacturer must show that, in the minds of
the public, the primary significance of a product feature or term
is to identify the source of the product rather than the product
itself." Inwood Laboratories, Inc. v. Ives Laboratories,
Inc., 456 U. S.
844 , 851, n. 11 (1982).

															5 The Court of Appeals agreed: "The weight of the evidence
persuades us, as it did Judge Singleton, that Two Pesos brazenly
copied Taco Cabana's successful trade dress, and proceeded to
expand in a manner that 767 The Court of Appeals ruled that the instructions adequately
stated the applicable law and that the evidence supported the
jury's findings. In particular, the Court of Appeals rejected
petitioner's argument that a finding of no secondary meaning
contradicted a finding of inherent distinctiveness.

															In so holding, the court below followed precedent in the Fifth
Circuit. In Chevron Chemical Co. v. Voluntary Purchasing
Groups, Inc., 659 F.2d
695 , 702 (CA5 1981), the court noted that trademark law
requires a demonstration of secondary meaning only when the claimed
trademark is not sufficiently distinctive of itself to identify the
producer; the court held that the same principles should apply to
protection of trade dresses. The Court of Appeals noted that this
approach conflicts with decisions of other courts, particularly the
holding of the Court of Appeals for the Second Circuit in Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F.2d
299 (1981), cert. denied, 455 U. S. 909 (1982), that § 43(a)
protects unregistered trademarks or designs only where secondary
meaning is shown. Chevron, supra, at 702. We granted
certiorari to resolve the conflict among the Courts of Appeals on
the question whether trade dress that is inherently distinctive is
protectible under § 43(a) without a showing that it has acquired
secondary meaning.6 502 U. S. 1071 (1992). We find that it is, and
we therefore affirm.

															II

															The Lanham Act 7 was intended to make "actionable the deceptive
and misleading use of marks" and "to protect per-

															foreclosed several lucrative markets within Taco Cabana's
natural zone of expansion." 932 F. 2d, at 1127, n. 20.

															6We limited our grant of certiorari to the above question on
which there is a conflict. We did not grant certiorari on the
second question presented by the petition, which challenged the
Court of Appeals' acceptance of the jury's finding that Taco
Cabana's trade dress was not functional.

															7 The Lanham Act, including the provisions at issue here, has
been substantially amended since the present suit was brought. See
Trademark Law Revision Act of 1988, 102 Stat. 3946, 15 U. S. C. §
1121. 768 sons engaged in ... commerce against unfair competition." § 45,
15 U. S. C. § 1127. Section 43(a) "prohibits a broader range of
practices than does § 32," which applies to registered marks, Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844 ,
858 (1982), but it is common ground that § 43(a) protects
qualifying unregistered trademarks and that the general principles
qualifying a mark for registration under § 2 of the Lanham Act are
for the most part applicable in determining whether an unregistered
mark is entitled to protection under § 43(a). See A. J. Canfield Co. v. Honickman, 808 F.2d
291 , 299, n. 9 (CA3 1986); Thompson Medical Co. v. Pfizer Inc., 753 F.2d
208 , 215-216 (CA2 1985).

															A trademark is defined in 15 U. S. C. § 1127 as including "any
word, name, symbol, or device or any combination thereof" used by
any person "to identify and distinguish his or her goods, including
a unique product, from those manufactured or sold by others and to
indicate the source of the goods, even if that source is unknown."
In order to be registered, a mark must be capable of distinguishing
the applicant's goods from those of others. § 1052. Marks are often
classified in categories of generally increasing distinctiveness;
following the classic formulation set out by Judge Friendly, they
may be (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary;
or (5) fanciful. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d
4 , 9 (CA2 1976). The Court of Appeals followed this
classification and petitioner accepts it. Brief for Petitioner
11-15. The latter three categories of marks, because their
intrinsic nature serves to identify a particular source of a
product, are deemed inherently distinctive and are entitled to
protection. In contrast, generic marks-those that "refe[r] to the
genus of which the particular product is a species," Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U. S. 189 ,
194 (1985), citing Abercrombie & Fitch, supra, at
9-are not registrable as trademarks. Park 'N Fly,
supra, at 194. 769 Marks which are merely descriptive of a product are not
inherently distinctive. When used to describe a product, they do
not inherently identify a particular source, and hence cannot be
protected. However, descriptive marks may acquire the
distinctiveness which will allow them to be protected under the
Act. Section 2 of the Lanham Act provides that a descriptive mark
that otherwise could not be registered under the Act may be
registered if it "has become distinctive of the applicant's goods
in commerce." §§ 2(e), (f), 15 U. S. C. §§ 1052(e), (f). See Park 'N Fly, supra, at 194, 196. This acquired
distinctiveness is generally called "secondary meaning." See ibid.; Inwood Laboratories, supra, at 851, n. 11; Kellogg
Co. v. National Biscuit Co., 305 U. S. 111 ,118 (1938).
The concept of secondary meaning has been applied to actions under
§ 43(a). See, e. g., University of Georgia Athletic Assn. v. Laite, 756 F.2d
1535 (CA111985); Thompson Medical Co. v. Pfizer Inc.,
supra. The general rule regarding distinctiveness is clear: An
identifying mark is distinctive and capable of being protected if
it either (1) is inherently distinctive or (2) has
acquired distinctiveness through secondary meaning. Restatement
(Third) of Unfair Competition § 13, pp. 37-38, and Comment a (Tent. Draft No.2, Mar. 23, 1990). Cf. Park 'N Fly,
supra, at 194. It is also clear that eligibility for protection
under § 43(a) depends on nonfunctionality. See, e. g., Inwood
Laboratories, supra, at 863 (WHITE, J., concurring in result);
see also, e. g., Brunswick Corp. v. Spinit Reel Co., 832 F.2d
513 , 517 (CAlO 1987); First Brands Corp. v. Fred
Meyers, Inc., 809 F.2d
1378 , 1381 (CA9 1987); Stormy Clime Ltd. v. ProGroup,
Inc., 809 F.2d
971 , 974 (CA2 1987); Ambrit, Inc. v. Kraft, Inc., 812 F.2d
1531 , 1535 (CAll 1986); American Greetings Corp. v. Dan-Dee Imports, Inc., 807 F.2d
1136 , 1141 (CA3 1986). It is, of course, also undisputed that
liability under § 43(a) requires proof of the likelihood of
confusion. See, e. g., Brunswick Corp., supra, at 516-517; AmBrit, 770 supra, at 1535; First Brands, supra, at 1381; Stormy Clime,
supra, at 974; American Greetings, supra, at 1141.

															The Court of Appeals determined that the District Court's
instructions were consistent with the foregoing principles and that
the evidence supported the jury's verdict. Both courts thus ruled
that Taco Cabana's trade dress was not descriptive but rather
inherently distinctive, and that it was not functional. None of
these rulings is before us in this case, and for present purposes
we assume, without deciding, that each of them is correct. In going
on to affirm the judgment for respondent, the Court of Appeals,
following its prior decision in Chevron, held that Taco
Cabana's inherently distinctive trade dress was entitled to
protection despite the lack of proof of secondary meaning. It is
this issue that is before us for decision, and we agree with its
resolution by the Court of Appeals. There is no persuasive reason
to apply to trade dress a general requirement of secondary meaning
which is at odds with the principles generally applicable to
infringement suits under § 43(a). Petitioner devotes much of its
briefing to arguing issues that are not before us, and we address
only its arguments relevant to whether proof of secondary meaning
is essential to qualify an inherently distinctive trade dress for
protection under § 43(a).

															Petitioner argues that the jury's finding that the trade dress
has not acquired a secondary meaning shows conclusively that the
trade dress is not inherently distinctive. Brief for Petitioner 9.
The Court of Appeals' disposition of this issue was sound: "Two Pesos' argument-that the jury finding of inherent
distinctiveness contradicts its finding of no secondary meaning in
the Texas market-ignores the law in this circuit. While the
necessarily imperfect (and often prohibitively difficult) methods
for assessing secondary meaning address the empirical question of
current consumer association, the legal recognition of an
inherently distinctive trademark or trade dress acknowledges
the 771 owner's legitimate proprietary interest in its unique and
valuable informational device, regardless of whether substantial
consumer association yet bestows the additional empirical
protection of secondary meaning." 932 F. 2d, at 1120, n. 7. Although petitioner makes the above argument, it appears to
concede elsewhere in its brief that it is possible for a trade
dress, even a restaurant trade dress, to be inherently distinctive
and thus eligible for protection under § 43(a). Brief for
Petitioner 10-11, 17-18; Reply Brief for Petitioner 10-14.
Recognizing that a general requirement of secondary meaning imposes
"an unfair prospect of theft [or] financial loss" on the developer
of fanciful or arbitrary trade dress at the outset of its use,
petitioner suggests that such trade dress should receive limited
protection without proof of secondary meaning. Id., at 10.
Petitioner argues that such protection should be only temporary and
subject to defeasance when over time the dress has failed to
acquire a secondary meaning. This approach is also vulnerable for
the reasons given by the Court of Appeals. If temporary protection
is available from the earliest use of the trade dress, it must be
because it is neither functional nor descriptive, but an inherently
distinctive dress that is capable of identifying a particular
source of the product. Such a trade dress, or mark, is not subject
to copying by concerns that have an equal opportunity to choose
their own inherently distinctive trade dress. To terminate
protection for failure to gain secondary meaning over some
unspecified time could not be based on the failure of the dress to
retain its fanciful, arbitrary, or suggestive nature, but on the
failure of the user of the dress to be successful enough in the
marketplace. This is not a valid basis to find a dress or mark
ineligible for protection. The user of such a trade dress should be
able to maintain what competitive position it has and continue to
seek wider identification among potential customers. 772 This brings us to the line of decisions by the Court of Appeals
for the Second Circuit that would find protection for trade dress
unavailable absent proof of secondary meaning, a position that
petitioner concedes would have to be modified if the temporary
protection that it suggests is to be recognized. Brief for
Petitioner 10-14. In Vibrant Sales, Inc. v. New Body
Boutique, Inc., 652 F.2d
299 (1981), the plaintiff claimed protection under § 43(a) for
a product whose features the defendant had allegedly copied. The
Court of Appeals held that unregistered marks did not enjoy the
"presumptive source association" enjoyed by registered marks and
hence could not qualify for protection under § 43(a) without proof
of secondary meaning. Id., at 303, 304. The court's
rationale seemingly denied protection for unregistered, but
inherently distinctive, marks of all kinds, whether the claimed
mark used distinctive words or symbols or distinctive product
design. The court thus did not accept the arguments that an
unregistered mark was capable of identifying a source and that
copying such a mark could be making any kind of a false statement
or representation under § 43(a).

															This holding is in considerable tension with the provisions of
the Lanham Act. If a verbal or symbolic mark or the features of a
product design may be registered under § 2, it necessarily is a
mark "by which the goods of the applicant may be distinguished from
the goods of others," 60 Stat. 428, and must be registered unless
otherwise disqualified. Since § 2 requires secondary meaning only
as a condition to registering descriptive marks, there are plainly
marks that are registrable without showing secondary meaning. These
same marks, even if not registered, remain inherently capable of
distinguishing the goods of the users of these marks. Furthermore,
the copier of such a mark may be seen as falsely claiming that his
products may for some reason be thought of as originating from the
plaintiff.

															Some years after Vibrant, the Second Circuit announced in Thompson Medical Co. v. Pfizer Inc., 753 F.2d
208 (1985), 773 that in deciding whether an unregistered mark is eligible for
protection under § 43(a), it would follow the classification of
marks set out by Judge Friendly in Abercrombie & Fitch, 537 F. 2d, at 9. Hence, if an unregistered mark is
deemed merely descriptive, which the verbal mark before the court
proved to be, proof of secondary meaning is required; however,
"[s]uggestive marks are eligible for protection without any proof
of secondary meaning, since the connection between the mark and the
source is presumed." 753 F. 2d, at 216. The Second Circuit has
nevertheless continued to deny protection for trade dress under §
43(a) absent proof of secondary meaning, despite the fact that §
43(a) provides no basis for distinguishing between trademark and
trade dress. See, e. g., Stormy Clime Ltd. v. ProGroup,
Inc., 809 F. 2d, at 974; Union Mfg. Co. v. Han Baek
Trading Co., 763 F.2d
42 , 48 (1985); LeSportsac, Inc. v. K mart Corp., 754 F.2d
71 , 75 (1985).

															The Fifth Circuit was quite right in Chevron, and in this
case, to follow the Abercrombie classifications consistently
and to inquire whether trade dress for which protection is claimed
under § 43(a) is inherently distinctive. If it is, it is capable of
identifying products or services as coming from a specific source
and secondary meaning is not required. This is the rule generally
applicable to trademarks, and the protection of trademarks and
trade dress under § 43(a) serves the same statutory purpose of
preventing deception and unfair competition. There is no persuasive
reason to apply different analysis to the two. The "proposition
that secondary meaning must be shown even if the trade dress is a
distinctive, identifying mark, [is] wrong, for the reasons
explained by Judge Rubin for the Fifth Circuit in Chevron." Blau
Plumbing, Inc. v. S. O. S. Fix-It, Inc., 781 F.2d
604 , 608 (CA7 1986). The Court of Appeals for the Eleventh
Circuit also follows Chevron, Ambrit, Inc. v. Kraft,
Inc., 805 F.2d
974 , 979 (1986), and the Court of Appeals for the Ninth Circuit
appears to think that proof of secondary meaning is super- 774 fiuous if a trade dress is inherently distinctive, Fuddruckers, Inc. v. Doc's B. R. Others, Inc., 826 F.2d
837 , 843 (1987).

															It would be a different matter if there were textual basis in §
43(a) for treating inherently distinctive verbal or symbolic
trademarks differently from inherently distinctive trade dress. But
there is none. The section does not mention trademarks or trade
dress, whether they be called generic, descriptive, suggestive,
arbitrary, fanciful, or functional. Nor does the concept of
secondary meaning appear in the text of § 43(a). Where secondary
meaning does appear in the statute, 15 U. S. C. § 1052 (1982 ed.),
it is a requirement that applies only to merely descriptive marks
and not to inherently distinctive ones. We see no basis for
requiring secondary meaning for inherently distinctive trade dress
protection under § 43(a) but not for other distinctive words,
symbols, or devices capable of identifying a producer's
product.

															Engrafting onto § 43(a) a requirement of secondary meaning for
inherently distinctive trade dress also would undermine the
purposes of the Lanham Act. Protection of trade dress, no less than
of trademarks, serves the Act's purpose to "secure to the owner of
the mark the goodwill of his business and to protect the ability of
consumers to distinguish among competing producers. National
protection of trademarks is desirable, Congress concluded, because
trademarks foster competition and the maintenance of quality by
securing to the producer the benefits of good reputation." Park 'N Fly, 469 U. S., at 198, citing S. Rep. No.
1333, 79th Cong., 2d Sess., 3-5 (1946) (citations omitted). By
making more difficult the identification of a producer with its
product, a secondary meaning requirement for a nondescriptive trade
dress would hinder improving or maintaining the producer's
competitive position.

															Suggestions that under the Fifth Circuit's law, the initial user
of any shape or design would cut off competition from 775 products of like design and shape are not persuasive. Only
nonfunctional, distinctive trade dress is protected under § 43(a).
The Fifth Circuit holds that a design is legally functional, and
thus unprotectible, if it is one of a limited number of equally
efficient options available to competitors and free competition
would be unduly hindered by according the design trademark
protection. See Sicilia Di R. Biebow & Co. v. Cox, 732 F.2d
417 , 426 (1984). This serves to assure that competition will
not be stifled by the exhaustion of a limited number of trade
dresses.

															On the other hand, adding a secondary meaning requirement could
have anticompetitive effects, creating particular burdens on the
startup of small companies. It would present special difficulties
for a business, such as respondent, that seeks to start a new
product in a limited area and then expand into new markets. Denying
protection for inherently distinctive nonfunctional trade dress
until after secondary meaning has been established would allow a
competitor, which has not adopted a distinctive trade dress of its
own, to appropriate the originator's dress in other markets and to
deter the originator from expanding into and competing in these
areas.

															As noted above, petitioner concedes that protecting an
inherently distinctive trade dress from its inception may be
critical to new entrants to the market and that withholding
protection until secondary meaning has been established would be
contrary to the goals of the Lanham Act. Petitioner specifically
suggests, however, that the solution is to dispense with the
requirement of secondary meaning for a reasonable, but brief,
period at the outset of the use of a trade dress. Reply Brief for
Petitioner 11-12. If §43(a) does not require secondary meaning at
the outset of a business' adoption of trade dress, there is no
basis in the statute to support the suggestion that such a
requirement comes into being after some unspecified time. 776 III

															We agree with the Court of Appeals that proof of secondary
meaning is not required to prevail on a claim under § 43(a) of the
Lanham Act where the trade dress at issue is inherently
distinctive, and accordingly the judgment of that court is
affirmed.

															It is so ordered.

															JUSTICE SCALIA, concurring.

															I write separately to note my complete agreement with JUSTICE
THOMAS'S explanation as to how the language of § 43(a) and its
common-law derivation are broad enough to embrace inherently
distinctive trade dress. Nevertheless, because I find that analysis
to be complementary to (and not inconsistent with) the Court's
opinion, I concur in the latter.

															JUSTICE STEVENS, concurring in the judgment.

															As the Court notes in its opinion, the text of § 43(a) of the
Lanham Act, 15 U. S. C. § 1125(a) (1982 ed.), "does not mention
trademarks or trade dress." Ante, at 774. Nevertheless, the
Court interprets this section as having created a federal cause of
action for infringement of an unregistered trademark or trade dress
and concludes that such a mark or dress should receive essentially
the same protection as those that are registered. Although I agree
with the Court's conclusion, I think it is important to recognize
that the meaning of the text has been transformed by the federal
courts over the past few decades. I agree with this transformation,
even though it marks a departure from the original text, because it
is consistent with the purposes of the statute and has recently
been endorsed by Congress. 777 I

															It is appropriate to begin with the relevant text of §43(a).1
See, e. g., Moskal v. United States, 498 U. S. 103 (1990); K mart Corp. v. Cartier, Inc., 486 U. S. 281 , 291
(1988); United States v. Turkette, 452 U. S. 576 , 580
(1981). Section 43(a) 2 provides a federal remedy for using either
"a false designation of origin" or a "false description or
representation" in connection with any goods or services. The full
text of the section makes it clear that the word "origin" refers to
the geographic location in which the goods originated, and in fact,
the phrase "false designation of origin" was understood to be
limited to false advertising of geographic origin. For example, the
"false designation of origin" language con-

															1 The text that we consider today is § 43(a) of the Lanham Act
prior to the 1988 amendments; it provides:

															"Any person who shall affix, apply, or annex, or use in
connection with any goods or services, or any container or
containers for goods, a false designation of origin, or any false
description or representation, including words or other symbols
tending falsely to describe or represent the same, and shall cause
such goods or services to enter into commerce, and any person who
shall with knowledge of the falsity of such designation of origin
or description or representation cause or procure the same to be
transported or used in commerce or deliver the same to any carrier
to be transported or used, shall be liable to a civil action by any
person doing business in the locality falsely indicated as that of
origin or in the region in which said locality is situated, or by
any person who believes that he is or is likely to be damaged by
the use of any such false description or representation." 15 U. S.
C. § 1125(a) (1982 ed.).

															2 Section 43(a) replaced and extended the coverage of § 3 of the
Trademark Act of 1920, 41 Stat. 534, as amended. Section 3 was
destined for oblivion largely because it referred only to false
designation of origin, was limited to articles of merchandise, thus
excluding services, and required a showing that the use of the
false designation of origin occurred "willfully and with intent to
deceive." Ibid. As a result, "[a]lmost no reported decision
can be found in which relief was granted to either a United States
or foreign party based on this newly created remedy." Derenberg,
Federal Unfair Competition Law at the End of the First Decade of
the Lanham Act: Prologue or Epilogue?, 32 N. Y. U. L. Rev. 1029,
1034 (1957). 778 tained in the statute makes it unlawful to represent that
California oranges came from Florida, or vice versa.3

															For a number of years after the 1946 enactment of the Lanham
Act, a "false description or representation," like "a false
designation of origin," was construed narrowly. The phrase
encompassed two kinds of wrongs: false advertising4 and the
common-law tort of "passing off."5 False advertising meant
representing that goods or services possessed characteristics that
they did not actually have and passing off meant representing one's
goods as those of another. Neither "secondary meaning" nor
"inherent distinctiveness" had anything to do with false
advertising, but proof of secondary meaning was an element of the
common-law

															3 This is clear from the fact that the cause of action created
by this section is available only to a person doing business in the
locality falsely indicated as that of origin. See n. 1, supra. 4 The deleterious effects of false advertising were described by
one commentator as follows: "[A] campaign of false advertising may
completely discredit the product of an industry, destroy the
confidence of consumers and impair a communal or trade good will.
Less tangible but nevertheless real is the injury suffered by the
honest dealer who finds it necessary to meet the price competition
of inferior goods, glamorously misdescribed by the unscrupulous
merchant. The competition of a liar is always dangerous even though
the exact injury may not be susceptible of precise proof." Handler,
Unfair Competition, 21 Iowa L. Rev. 175, 193 (1936).

															5 The common-law tort of passing off has been described as
follows:

															"Beginning in about 1803, English and American common law slowly
developed an offshoot of the tort of fraud and deceit and called it
'passing off' or 'palming off.' Simply stated, passing off as a
tort consists of one passing off his goods as the goods of another.
In 1842 Lord Langdale wrote:

															"'I think that the principle on which both the courts of law and
equity proceed is very well understood. A man is not to sell his
own goods under the pretence that they are the goods of another man
... .'

															"In 19th century cases, trademark infringement embodied much of
the elements of fraud and deceit from which trademark protection
developed. That is, the element of fraudulent intent was emphasized
over the objective facts of consumer confusion." 1 J. McCarthy,
Trademarks and Unfair Competition § 5.2, p. 133 (2d ed. 1984)
(McCarthy) (footnotes omitted). 779 passing-off cause of action. See, e. g., G. & c. Merriam Co. v. Saalfield, 198 F.3d
9 , 372 (CA6 1912) ("The ultimate offense always is that
defendant has passed off his goods as and for those of the
complainant").

															II

															Over time, the Circuits have expanded the categories of "false
designation of origin" and "false description or representation."
One treatise 6 identified the Court of Appeals for the Sixth
Circuit as the first to broaden the meaning of "origin" to include
"origin of source or manufacture" in addition to geographic
origin.7 Another early case, described as unique among the Circuit
cases because it was so "forwardlooking," 8 interpreted the "false
description or representation" language to mean more than mere
"palming off." L'Aiglon Apparel, Inc. v. Lana Lobell,
Inc., 214 F.2d
649 (CA3 1954). The court explained: "We find nothing in the
legislative history of the Lanham Act to justify the view that [§
43(a)] is merely declarative of existing law .... It seems to us
that Congress has defined a statutory civil wrong of false
representation of goods in commerce and has given a broad class of
suitors injured or likely to be injured by such wrong the right to
relief in the federal courts." Id., at 651. Judge Clark,
writing a concurrence in 1956, presciently observed:

															"Indeed, there is indication here and elsewhere that the bar has
not yet realized the potential impact of this statutory provision
[§43(a)]." Maternally Yours, Inc. v. Your Maternity Shop,
Inc., 234 F.2d
538 , 546 (CA2). Although some have criticized the expansion as
unwise,9 it is now "a firmly 62 id., § 27:3, p. 345.

															7 Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F.2d
405 , 408 (CA6 1963).

															8Derenberg, 32 N. Y. U. L. Rev., at 1047, 1049.

															9See, e. g., Germain, Unfair Trade Practices Under
§43(a) of the Lanham Act: You've Come a Long Way Baby-Too Far,
Maybe?, 64 Trademark Rep. 193, 194 (1974) ("It is submitted that
the cases have applied Section 780 embedded reality." 10 The United States Trade Association
Trademark Review Commission noted this transformation with
approval: "Section 43(a) is an enigma, but a very popular one.
Narrowly drawn and intended to reach false designations or
representations as to the geographical origin of products, the
section has been widely interpreted to create, in essence, a
federal law of unfair competition .... It has definitely eliminated
a gap in unfair competition law, and its vitality is showing no
signs of age." 11

															Today, it is less significant whether the infringement falls
under "false designation of origin" or "false description or
representation" 12 because in either case § 43(a) may be invoked.
The federal courts are in agreement that § 43(a) creates a federal
cause of action for trademark and trade dress infringement claims.
1 J. Gilson, Trademark Protection and Practice § 2.13, p. 2-178
(1991). They are also in agreement that the test for liability is
likelihood of confusion: "[U]nder the Lanham Act [§ 43(a)], the
ultimate test is whether the public is likely to be deceived or
confused by the similarity of the marks .... Whether we call the
violation infringement, unfair competition or false designation of
origin, the test is identical-is there a 'likelihood of
confusion?'" New West Corp. v. NYM Co. of California,
Inc., 595 F.2d
1194 , 1201 (CA9 1979) (footnote omitted). And the Circuits are
in

															43(a) to situations it was not intended to cover and have used
it in ways that it was not designed to function").

															102 McCarthy § 27:3, p. 345.

															11 The United States Trademark Association Trademark Review
Commission Report and Recommendations to USTA President and Board
of Directors, 77 Trademark Rep. 375, 426 (1987).

															12 Indeed, in count one of the complaint, respondent alleged
that petitioner "is continuing to affix, apply, or use in
connection with its restaurants, goods and services a false
designation o[f] origin, or a false description and representation,
tending to falsely describe or represent the same," and that
petitioner "has falsely designated the origin of its restaurants,
goods and services and has falsely described and represented the
same .... " App. 44-45; see Tr. of Oral Arg. 37. 781 general agreement,13 with perhaps the exception of the Second
Circuit,14 that secondary meaning need not be established once
there is a finding of inherent distinctiveness in order to
establish a trade dress violation under § 43(a).

															III

															Even though the lower courts' expansion of the categories
contained in § 43(a) is unsupported by the text of the Act, I am
persuaded that it is consistent with the general purposes of the
Act. For example, Congressman Lanham, the bill's sponsor, stated:
"The purpose of [the Act] is to protect le-

															13 See, e. g., AmBrit, Inc. v. Kraft, Inc., 805 F.2d
974 (CAll 1986), cert. denied, 481 U. S. 1041 (1987); Blau
Plumbing, Inc. v. S. O. S. Fix-It, Inc., 781
F.2d 604 (CA7 1986); In re Morton-Norwich Products, Inc., 671 F.2d
1332 , 1343 (C. C. P. A. 1982); Chevron Chemical Co. v.
Voluntary Purchasing Groups, Inc., 659 F.2d
695 (CA5 1981), cert. denied, 457 U. S. 1126 (1982); see also
Fuddruckers, Inc. v. Doc's B. R. Others, Inc., 826 F.2d
837 , 843-844 (CA9 1987); M. Kramer Mfg. Co. v. Andrews, 783 F.2d
421 , 449, n. 26 (CA4 1986). 14 Consistent with the common-law background of § 43(a), the
Second Circuit has said that proof of secondary meaning is required
to establish a claim that the defendant has traded on the
plaintiff's good will by falsely representing that his goods are
those of the plaintiff. See, e. g., Crescent Tool Co. v. Kilborn & Bishop Co., 247 F.2d
9 (1917). To my knowledge, however, the Second Circuit has not
explained why "inherent distinctiveness" is not an appropriate
substitute for proof of secondary meaning in a trade dress case.
Most of the cases in which the Second Circuit has said that
secondary meaning is required did not involve findings of inherent
distinctiveness. For example, in Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F.2d
299 (1981), cert. denied, 455 U. S. 909 (1982), the product at
issue-a velcro belt-was functional and lacked "any distinctive,
unique or non-functional mark or feature." 652 F. 2d, at 305.
Similarly, in Stormy Clime Ltd. v. Pro Group, Inc., 809 F.2d
971 , 977 (1987), the court described functionality as a
continuum, and placed the contested rainjacket closer to the
functional end than to the distinctive end. Although the court
described the lightweight bag in LeSportsac, Inc. v. K
mart Corp., 754 F.2d
71 (1985), as having a distinctive appearance and concluded
that the District Court's finding of nonfunctionality was not
clearly erroneous, id., at 74, it did not explain why
secondary meaning was also required in such a case. 782 gitimate business and the consumers of the country." 15 92 Congo
Rec. 7524 (1946). One way of accomplishing these dual goals was by
creating uniform legal rights and remedies that were appropriate
for a national economy. Although the protection of trademarks had
once been "entirely a State matter," the result of such a piecemeal
approach was that there were almost "as many different varieties of
common law as there are States" so that a person's right to a
trademark "in one State may differ widely from the rights which
[that person] enjoys in another." H. R. Rep. No. 944, 76th Cong.,
1st Sess., 4 (1939). The House Committee on Trademarks and Patents,
recognizing that "trade is no longer local, but ... national," saw
the need for "national legislation along national lines [to]
secur[e] to the owners of trademarks in interstate commerce
definite rights." Ibid. 16

															15 The Senate Report elaborated on these two goals:

															"The purpose underlying any trade-mark statute is twofold. One
is to protect the public so it may be confident that, in purchasing
a product bearing a particular trade-mark which it favorably knows,
it will get the product which it asks for and wants to get.
Secondly, where the owner of a trade-mark has spent energy, time,
and money in presenting to the public the product, he is protected
in his investment from its misappropriation by pirates and cheats.
This is the well-established rule of law protecting both the public
and the trade-mark owner." S. Rep. No. 1333, 79th Cong., 2d Sess.,
3 (1946).

															By protecting trademarks, Congress hoped "to protect the public
from deceit, to foster fair competition, and to secure to the
business community the advantages of reputation and good will by
preventing their diversion from those who have created them to
those who have not. This is the end to which this bill is
directed." Id., at 4.

															16 Forty years later, the USTA Trademark Review Commission
assessed the state of trademark law. The conclusion that it reached
serves as a testimonial to the success of the Act in achieving its
goal of uniformity:

															"The federal courts now decide, under federal law, all but a few
trademark disputes. State trademark law and state courts are less
influential than ever. Today the Lanham Act is the paramount source
of trademark law in the United States, as interpreted almost
exclusively by the federal courts." Trademark Review Commission, 77
Trademark Rep., at 377. 783 Congress has revisited this statute from time to time, and has
accepted the "judicial legislation" that has created this federal
cause of action. Recently, for example, in the Trademark Law
Revision Act of 1988, 102 Stat. 3935, Congress codified the
judicial interpretation of § 43(a), giving its im primatur to a growing body of case law from the
Circuits that had expanded the section beyond its original
language.

															Although Congress has not specifically addressed the question
whether secondary meaning is required under § 43(a), the steps it
has taken in this subsequent legislation suggest that secondary
meaning is not required if inherent distinctiveness has been
establishedP First, Congress broadened the language of § 43(a) to
make explicit that the provision prohibits "any word, term, name,
symbol, or device, or any combination thereof" that is "likely to
cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her
goods, services, or commercial activities by another person." 15 U.
S. C. § 1125(a). That language makes clear that a confusingly
similar trade dress is actionable under § 43(a), without necessary
reference to "falsity." Second, Congress approved and confirmed the
extensive judicial development under the provision, including its
application to trade dress that the federal courts had come to
apply.18 Third, the legis-

															17 "When several acts of Congress are passed touching the same
subjectmatter, subsequent legislation may be considered to assist
in the interpretation of prior legislation upon the same subject." Tiger v. Western Investment Co., 221 U. S. 286 , 309
(1911); see NLRB v. Bell Aerospace Co. of Textron,
Inc., 416 U. S.
267 , 275 (1974); Red Lion Broadcasting Co. v. FCC, 395 U. S.
367 , 380-381 (1969); United States v. Stafoff, 260 U. S. 477 ,
480 (1923) (opinion of Holmes, J.).

															18 As the Senate Report explained, revision of § 43(a) is
designed "to codify the interpretation it has been given by the
courts. Because Section 43(a) of the Act fills an important gap in
federal unfair compe- 784 lative history of the 1988 amendments reaffirms Congress' goals
of protecting both businesses and consumers with the Lanham Act.19
And fourth, Congress explicitly extended to any violation of §
43(a) the basic Lanham Act remedial provisions whose text
previously covered only registered trademarks.20 The aim of the
amendments was to apply the same protections to unregistered marks
as were already afforded to registered marks. See S. Rep. No.
100-515, p. 40 (1988). These steps buttress the conclusion that §
43(a) is properly understood to provide protection in accordance
with the standards for registration in § 2. These aspects of the
1988 legislation bolster the claim that an inherently distinctive
trade dress may be protected under § 43(a) without proof of
secondary meaning.

															IV

															In light of the consensus among the Courts of Appeals that have
actually addressed the question, and the steps on the part of
Congress to codify that consensus, stare decisis concerns
persuade me to join the Court's conclusion that secondary meaning
is not required to establish a trade dress violation under § 43(a)
once inherent distinctiveness

															tition law, the committee expects the courts to continue to
interpret the section.

															"As written, Section 43(a) appears to deal only with false
descriptions or representations and false designations of
geographic origin. Since its enactment in 1946, however, it has
been widely interpreted as creating, in essence, a federal law of
unfair competition. For example, it has been applied to cases
involving the infringement of unregistered marks, violations of
trade dress and certain nonfunctional configurations of goods and
actionable false advertising claims." S. Rep. No. 100-515, p. 40
(1988).

															19 "Trademark protection is important to both consumers and
producers.

															Trademark law protects the public by making consumers confident
that they can identify brands they prefer and can purchase those
brands without being confused or misled. Trademark laws also
protec[t] trademark owners. When the owner of a trademark has spent
conside[r]able time and money bringing a product to the
marketplace, trademark law protects the producer from pirates and
counterfeiters." Id., at 4.

															20 See 15 U. S. C. §§1114, 1116-1118. 785 has been established. Accordingly, I concur in the judgment, but
not in the opinion, of the Court.

															JUSTICE THOMAS, concurring in the judgment.

															Both the Court and JUSTICE STEVENS decide today that the
principles that qualify a mark for registration under § 2 of the
Lanham Act apply as well to determining whether an unregistered
mark is entitled to protection under § 43(a). The Court terms that
view "common ground," though it fails to explain why that might be
so, and JUSTICE STEVENS decides that the view among the Courts of
Appeals is textually insupportable, but worthy nonetheless of
adherence. See ante, at 768 (opinion of the Court); ante, at 781-782 (STEVENS, J., concurring in judgment). I
see no need in answering the question presented either to move back
and forth among the different sections of the Lanham Act or to
adopt what mayor may not be a misconstruction of the statute for
reasons akin to stare decisis. I would rely, instead, on the
language of § 43(a).

															Section 43(a) made actionable (before being amended) "any false
description or representation, including words or other symbols
tending falsely to describe or represent," when "use[d] in
connection with any goods or services." 15 U. S. C. § 1125(a) (1982
ed.). This language codified, among other things, the related
common-law torts of technical trademark infringement and passing
off, see Inwood Laboratories, Inc. v. Ives Laboratories,
Inc., 456 U. S.
844 , 861, n. 2 (1982) (WHITE, J., concurring in result); Chevron Chemical Co. v. Voluntary Purchasing Groups,
Inc., 659 F.2d
695 , 701 (CA5 1981), cert. denied, 457 U. S. 1126 (1982), which
were causes of action for false descriptions or representations
concerning a good's or service's source of production, see, e. g., Yale Electric Corp. v. Robertson, 26 F.2d 972, 973 (CA2 1928); American
Washboard Co. v. Saginaw Mfg. Co., 103 F.2d 1, 284-286
(CA6 1900). 786 At common law, words or symbols that were arbitrary, fanciful,
or suggestive (called "inherently distinctive" words or symbols, or
"trademarks") were presumed to represent the source of a product,
and the first user of a trademark could sue to protect it without
having to show that the word or symbol represented the product's
source in fact. See, e. g., Heublein v. Adams, 125 F.7d
2 , 784 (CC Mass. 1903). That presumption did not attach to
personal or geographic names or to words or symbols that only
described a product (called "trade names"), and the user of a
personal or geographic name or of a descriptive word or symbol
could obtain relief only if he first showed that his trade name did
in fact represent not just the product, but a producer (that the
good or service had developed "secondary meaning"). See, e. g., Florence Mfg. Co. v. J. C. Dowd & Co., 178 F. 73, 74-75 (CA2 1910). Trade dress, which
consists not of words or symbols, but of a product's packaging (or
"image," more broadly), seems at common law to have been thought
incapable ever of being inherently distinctive, perhaps on the
theory that the number of ways to package a product is finite.
Thus, a user of trade dress would always have had to show secondary
meaning in order to obtain protection. See, e. g., Crescent Tool
Co. v. Kilborn & Bishop Co., 247 F.2d
9 , 300-301 (CA2 1917); Flagg Mfg. Co. v. Holway, 178 Mass. 83, 91, 59 N. E. 667 (1901); Philadelphia Novelty Mfg.
Co. v. Rouss, 40 F.5d
5 ,587 (CC SDNY 1889); see also J. Hopkins, Law of Trademarks,
Tradenames and Unfair Competition § 54, pp. 140-141 (3d ed. 1917);
W. Browne, Law of Trade-Marks §§ 89b, 89c, pp. 106-110 (2d
ed. 1885); Restatement (Third) of the Law of Unfair Competition §
16, Comment b (Tent. Draft No.2, Mar. 23, 1990) (hereinafter
Third Restatement).

															Over time, judges have come to conclude that packages or images
may be as arbitrary, fanciful, or suggestive as words or symbols,
their numbers limited only by the human imagination. See, e. g.,
AmBrit, Inc. v. Kraft, Inc., 812 F.2d
1531 , 1536 (CAll 1986) ("square size, bright coloring, pebbled
tex- 787 ture, polar bear and sunburst images" of the package of the
"Klondike" ice cream bar held inherently distinctive), cert.
denied, 481 U. S. 1041 (1987); see also Third Restatement §§ 13,
16. A particular trade dress, then, is now considered as fully
capable as a particular trademark of serving as a "representation
or designation" of source under § 43(a). As a result, the first
user of an arbitrary package, like the first user of an arbitrary
word, should be entitled to the presumption that his package
represents him without having to show that it does so in fact. This
rule follows, in my view, from the language of § 43(a), and this
rule applies under that section without regard to the rules that
apply under the sections of the Lanham Act that deal with
registration.

															Because the Court reaches the same conclusion for different
reasons, I join its judgment.