Cite as: 505 U. S. 763 (1992)
Thomas, J., concurring in judgment
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.
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