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Syllabus
the product itself. This Court has held, however, that applications of at least one category of mark—color—can never be inherently distinctive, although they can be protected upon a showing of secondary meaning. Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 162-163. Pp. 209-212.
(b) Design, like color, is not inherently distinctive. The attribution of inherent distinctiveness to certain categories of word marks and product packaging derives from the fact that the very purpose of attaching a particular word to a product, or encasing it in a distinctive package, is most often to identify the product's source. Where it is not reasonable to assume consumer predisposition to take an affixed word or packaging as indication of source, inherent distinctiveness will not be found. With product design, as with color, consumers are aware of the reality that, almost invariably, that feature is intended not to identify the source, but to render the product itself more useful or more appealing. Pp. 212-214.
(c) Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, does not fore-close the Court's conclusion, since the trade dress there at issue was restaurant décor, which does not constitute product design, but rather product packaging or else some tertium quid that is akin to product packaging and has no bearing on the present case. While distinguishing Two Pesos might force courts to draw difficult lines between product-design and product-packaging trade dress, the frequency and difficulty of having to distinguish between the two will be much less than the frequency and difficulty of having to decide when a product design is inherently distinctive. To the extent there are close cases, courts should err on the side of caution and classify ambiguous trade dress as product design, thereby requiring secondary meaning. Pp. 214-215.
165 F. 3d 120, reversed and remanded.
Scalia, J., delivered the opinion for a unanimous Court.
William D. Coston argued the cause for petitioner. With him on the briefs were Kenneth C. Bass III and Martin L. Saad.
Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Edward C. DuMont, Barbara C. Biddle, Alfred Mollin, Albin F. Drost, and Nancy C. Slutter.
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