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NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 91-971
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TWO PESOS, INC., PETITIONER v. TACO CABANA,
INC.
on writ of certiorari to the united states court of
appeals for the fifth circuit
[June 26, 1992]

  Justice White delivered the opinion of the Court.
  The issue in this case is whether the trade dress 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) (1982 ed.), based on a finding of inherent distinc-
tiveness, without proof that the trade dress has secondary
meaning.
                            I
  Respondent Taco Cabana, Inc., operates a chain of fast-
food 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 de-
scribes 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 El
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.), and for theft of trade
secrets 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; the trade dress has
not acquired a secondary meaning in the Texas market;
and the alleged infringement creates a likelihood of confu-
sion 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.
  The Court of Appeals ruled that the instructions ade-
quately 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 which is inherently distinctive is protectable under
43(a) without a showing that it has acquired secondary
meaning.  502 U. S. ___ (1992).  We find that it is, and we
therefore affirm.
                           II
  The Lanham Act was intended to make -actionable the
deceptive and misleading use of marks- and -to protect
persons engaged in . . . commerce against unfair competi-
tion.-  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 Labora-
tories, Inc., 456 U. S. 844, 858 (1982), but it is common
ground that 43(a) protects qualifying unregistered trade-
marks 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 distinc-
tiveness; 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 and 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.
  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 gene-
rally called -secondary meaning.-  See ibid.; Inwood Labora-
tories, 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 (CA11 1985); Thompson Medical Co. v. Pfizer Inc.,
supra.
  The general rule regarding distinctiveness is clear: an
identifying mark is distinctive and capable of being pro-
tected if it either (1) is inherently distinctive or (2) has
acquired distinctiveness through secondary meaning.  Re-
statement (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 (CA10 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 (CA11 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, 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, follow-
ing 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 protec-
tion under 43(a).
  Petitioner argues that the jury's finding that the trade
dress has not acquired a secondary meaning shows conclu-
sively 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 inher-
ent distinctiveness contradicts its finding of no second-
ary 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 ac-
knowledges the 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 briefing 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 require-
ment 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.  Reply Brief
for Petitioner 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 market-
place.  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.
  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 provi-
sions of the 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 (CA2
1985), 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 unregis-
tered 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 distin-
guishing 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 trademark, 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 superfluous 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 protec-
tion 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 require-
ment for a nondescriptive trade dress would hinder improv-
ing 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
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 unprotectable, if it is one of a limited
number of equally efficient options available to competitors
and free competition would be unduly hindered by accord-
ing the design trademark protection.  See Sicilia Di R.
Biebow & Co. v. Cox, 732 F. 2d 417, 426 (CA5 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 require-
ment could have anticompetitive effects, creating particular
burdens on the start-up of small companies.  It would
present special difficulties for a business, such as respon-
dent, 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.  Petition-
er 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.
                           III
  We agree with the Court of Appeals that proof of second-
ary 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.