786
Thomas, J., concurring in judgment
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. 782, 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. 299, 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. 585, 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 (CA11 1986) ("square size, bright coloring, pebbled tex-
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