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by the Court to judicially recognize this reality.

The Wal-Mart Court reasoned that requiring a prerequisite

showing of secondary meaning for unregistered product designs

would ultimately serve to protect new market entrants from "anticompetitive

strike suit[s],"'"4 by removing an environment that

"facilitates plausible threats of suit against new entrants based upon

alleged inherent distinctiveness. '"4

The Court unanimously rejected the suggestion that it adopt a

hybrid of the Seabrook test for determining inherent distinctiveness of

a product design.45 The Seabrook test is inadequate because it

"would rarely provide the basis for summary disposition of an

anticompetitive strike suit," and furthermore, because that test could

not even be applied to the facts of the case itself, let alone trade dress

cases.

46

Ultimately, the Court reasoned that any apparent harshness of

their new, bright line rule was mitigated by a producer's ability to

seek a design patent or copyright protection for the design of its

products.47 It also reiterated that its decision in Wal-Mart was not

directly in conflict with Two Pesos and that Two Pesos had absolutely

no bearing on the Wal-Mart case because the design of the restaurant

in Two Pesos was more akin to product packaging or "some tertitn

quid,"48 than it was to product design.49

411d. at 213.

42 rd.

431d. at 214.

' Wal-Mart Stores, 529 U.S. at 213.

4

11d at 213-14.

' Id. at 214. The Seabrook test was derived from a 1977 product packaging decision by the

Court of Customs and Patent Appeals. The test, "in determining the inherent distinctiveness of a

product's packaging, considered, among other things, 'whether it was a 'common' basic shap.-

or design, whether it was unique or unusual in a particular field, [and] % hcther it was a mere

refinement of a commonly-adopted and well-knowm form ofomarmentation for a particular class

of goods viewed by the public as a dress or ornamentation for the goods."...