Cite as: 505 U. S. 763 (1992)
Thomas, J., concurring in judgment
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 may or 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. 281, 284-286 (CA6 1900).
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