KOHLER CO., Plaintiff/Appellant, v. MOEN INCORPORATED, f/k/a Stanadyne, Inc., Defendant/Appellee, 12 F.3d 632

COFFEY, Circuit Judge. This action began in 1987 when Moen, Incorporated (“Moen”) filed two applications in the United States Patent and Trademark Office (“PTO”) to register a faucet design and a faucet handle design as trademarks. Kohler Company (“Kohler”) opposed the applications before the PTO’s Trademark Trial and Appeal Board (“TTAB”) on the ground that product shapes were not registrable as trademarks. The TTAB dismissed Kohler’s oppositions. Kohler sought review of the TTAB’s decision under 15 U.S.C. § 1071(

b) in the district court. The parties filed cross

summary judgment motions and stipulated first that they would rely on the record before the TTAB and further that no new evidence would be submitted. The district court entered

summary judgment in favor of Moen and against Kohler. Kohler filed a timely appeal from the district court’s judgment. We affirm. I. BACKGROUND Kohler and Moen are competitors in the business of manufacturing and selling plumbing products, including faucets and faucet handles. Moen sought and obtained trademark registration of its “LEGEND” kitchen faucet and the appearance of the handle used on the “LEGEND” and other Moen faucets.

In support of registration of its product configurations as trademarks, Moen introduced voluminous evidence of sales and promotional expenses with respect to each design, and also submitted substantial evidence that purchasers of its products recognized the source of the faucets by their distinctive shapes. The record included hundreds of declarations from persons in the plumbing business and from individual purchasers attesting to the distinctiveness of the shape of Moen’s faucet and handle without reference to any markings.

One of Moen’s vice-presidents submitted a declaration stating that Moen’s faucet design is not based upon utility or function, is not inexpensive to manufacture, and is only one of many competitive designs in the industry performing the same function.

Moen also submitted a declaration from the chairman of one of its chief competitors, Price Pfister, that stated that Moen’s faucet is distinctive, its design indicates a single point of origin, the design is neither functional nor utilitarian, and that trademark protection for the configuration would not hinder competition in the plumbing trade., Finally, a market research survey of 273 licensed plumbers in six cities revealed .that eighty-twp percent of those surveyed identified the faucet as a Moen product, and eighty-three percent identified the handle as a Moen product. • In proceedings before the TTAB, in the district court, and in this court, Kohler has forthrightly conceded that if product shapes can receive protection under federal trademark law, Moen is entitled to registration of its LEGEND faucet and faucet handle.

Thus, the issue before the district court and this court is legal in nature: does the § 45 definition of “Trademark” in the • Lanham Act, 15 U.S.C. § 1127 (1988), (“the Act”) exclude trademark protection of product configurations? II. • STANDARD OF REVIEW We review issues decided on

summary judgment de novo and resolve all reasonable inferences in favor of the nonmoving party. Spraying Systems Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir.1992).

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c), Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The parties agree there are no issues of material fact that would preclude entry of

summary judgment. The central issue on appeal is whether the district court correctly determined that product configurations are entitled to trademark, protection under § 43 of the Act, 15 U.S.C. § 1125 (1988). Under the Chevron doctrine, established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), “when a court reviews an [administrative] agency’s construction of the statute which it administers, it is confronted with two questions.” Id. at 842, 104 S.Ct. at 2781.

First, the court must determine whether Congress addressed the precise question at issue in the statute’s plain language. If so, “that is the end of the matter; for the Court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. at 2781-82. If, however, the statute is silent or ambiguous with respect to the specific issue, the reviewing court must inquire whether Congress authorized the agency to make the legal

interpretation at issue. Id. at 843-44, 104 S.Ct. at 2782; Condo v. Sysco Corp., 1 F.3d 599, 603 (7th Cir.1993); Homemakers North Shore, Inc. v. Bowen, 832 F.2d 408, 411-12 (7th Cir.1987). If Congress did not intend such delegation, “the reviewing court must interpret the statute with little deference to the agency’s

interpretation, for the judiciary is the final authority on issues of statutory construction.” Condo, 1 F.3d at 604 (citing Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2781 n. 9). If, however, Congress delegated to the agency the authority to interpret the statute, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. To uphold the agency’s

interpretation, the court does not have to conclude the agency’s

interpretation was the only possible construction or the construction the court would have reached on its own reading of the statute. Id. n. 11. The agency’s

interpretation need only be reasonable. Id. at 866, 104 S.Ct. at 2793; see also Pauly v. Bethenergy Mines, Inc., — U.S. -, -, 111 S.Ct. 2524, 2535, 115 L.Ed.2d 604 (1991) (applying “reasonableness” standard). III. ANALYSIS In dismissing Kohler’s oppositions, the TTAB necessarily concluded that § 45 of the Act provides trademark protection for product configurations.

Section 45 of the Act defines trademark to “include) ] any word, name, symbol, or device or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.” 15 U.S.C. § 1127 (1988). As Kohler notes, § 45 does not list “product configuration” among its examples of trademarks. Early decisions under the Act strictly construed the language of § 45 and held that a product or container shape was not entitled to trademark protection.

See 1 McCarthy, McCarthy on Trademarks and Unfair Competition, § 7.31 (3d ed.1992) [hereinafter McCarthy on Trademarks]; Ex Parte Minnesota Mining & Mfg. Co., 92 U.S.P.Q. 74 (1952). Subsequent TTAB decisions and the courts reviewing TTAB rulings, however, have interpreted § 45 to allow trademark protection for product configurations.

In Application of Kotzin, 276 F.2d 411, 414-15 (C.C.P.A.1960), the Court of Customs and Patent Appeals (“C.C.P.A.”) held that the § 45 list (“word, name, symbol or device”) did not restrict other items from receiving trademark protection if they satisfied the requirements for registration on .the Principal Register. The court in Kotzin supported its

interpretation of the statute by noting that the provision stated that trademarks “include” words, names, symbols or devices, not that “trademark” “means” words, names, symbols or devices. Furthermore, the court noted that the language of § 2 of the Act, 15 U.S.C. § 1052, which lists exceptions to registrability under the Act, supported its ruling that Congress did not intend § 45 to be an all-inclusive list. Id. at

Section 2 states that “[n]o trademark ... shall be refused registration on the principal register on account of its nature,” unless one or more of the specified exceptions to registrability set forth, in the statute apply. 15 U.S.C. § 1052 (emphasis added). Neither trouser tags (the item the applicant sought to register in Kotzin) nor product configurations fall within any of the exceptions to registrability set forth in § 2. In Application of Mogen David, 328 F.2d 925 (C.C.P.A.1964), the C.C.P.A. held that the configuration of a container could be registered as a trademark for the product it contains.

Id. at 929-30. The C.C.P.A. thereafter held that a product configuration itself could be registered as a trademark in Application of Honeywell, Inc., 497 F.2d 1844 (C.C.P.A.), cert. denied, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674 (1974). The C.C.P.A, the Federal Circuit, and the TTAB have since interpreted § 45 to allow trademark protection for qualifying product configurations. See In re Teledyne, 696 F.2d 968 (Fed.Cir.1982); In re Morton-Norwich Prods., Inc., 671 F.2d 1332 (C.C.P.A.1982); Oxford Pendaflex Corp. v.

Rolodex Corp., 204 U.S.P.Q. 249 (TTAB 1973); In re Superba Cravats, Inc., 145 U.S.P.Q. 354 (TTAB 1965). Because Congress did not specify in § 45 that product configurations are entitled to trademark protection, however, we must determine whether Congress authorized the Commissioner of Patents and Trademarks and the TTAB to interpret § 45 of the Act. In 35 U.S.C. § 6 (1988), Congress explicitly- granted the Commissioner the duty of administering the Act, including rule making. The Commissioner also is a member of the adjudicative body of the Patent and Trademark Office, the TTAB. 35 U.S.C. § 7 (1988).

The Supreme Court recognized the authority of the Commissioner and the TTAB to interpret the Act in Graham v. John Deere Company, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966): [i]t is the duty of the Commissioner of Patents and of the courts in the administration of the patent system to give effect to the constitutional standard by appropriate application, in each case, of the statutory scheme of Congress. Id. at 6, 86 S.Ct. at 688.

The Commissioner could not administer the Act, and the TTAB could not resolve issues arising in trademark applications under the Act, without interpreting § 45 to discern whether product configurations were eligible for trademark status. Of course, the TTAB’s decisions are subject to judicial review, 15 U.S.C. § 1071 (1988); FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981), but the TTAB must interpret § 45 in the first instance to determine whether product configurations qualify as trademarks. See Condo, 1 F.3d at 605.

The third and final inquiry in the Chevron analysis is whether the TTAB conclusion that product configurations are eligible for trademark status is based on a permissible construction of § 45 of the Act. The persuasiveness of the TTAB and the Federal Circuit’s

interpretation of § 45 is reinforced by the legislative history accompanying the 1988 Lanham Act amendments. See Trademark Law Revision Act of 1988, Pub.L. 100-667, § 38, S.Rep. 515, 100th Cong., 2d Sess. 44 (1988), reprinted in, 1988 U.S.C.C.A.N. 5577, 5607. Although these amendments did not take effect until November 1989, approxi-mátely two years after the TTAB’s decision in this case, as a codification of prior case law they validate the uniform preamendment

interpretation of § 45 on the Act. The Senate Report accompanying the 1988 amendments specifically states “the words ‘symbol or device,’ ” were retained in the Trademark Revision Act’s revised definition of trademark “so as not to preclude the registration of colors, shapes, sounds or configurations where they function as trademarks.” S.Rep. 100-515, 100th Cong., 2d Sess. at 44, reprinted in, 1988 U.S.C.C.A.N. at 5607 (emphasis added). Congress thus specifically approved the broad judicial

interpretation of § 45’s definition of “trademark” to include product configurations. In light of uniform and persuasive judicial authority and the subsequent congressional approval of those judicial

interpretations of § 45, we conclude Congress intended that product configurations were eligible for trademark status under § 45 of the Lanham Act.. Therefore, we hold now, as we have in the past, that § 45 of the Act allows product configurations to'be eligible for trademark status. See Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176 (7th Cir.1989); Service Ideas, Inc. v. Traex Corp., 846 F.2d 1118 (7th Cir.1988); W.T. Rogers Co. v. Keene, 778 F.2d 334, 337 (7th Cir.1985). Having determined that the TTAB’s construction of § 45 is permissible and is consistent with our construction thereof, we turn to the specific challenges to the TTAB’s

interpretation. In its brief, Kohler restates essentially two arguments in various forms. Initially, Koh-ler-argues that granting trademark protection to product configurations impermissibly conflicts with the Patent Clause of the United States Constitution and the implementing patent law because it is the equivalent of a perpetual patent. Second, Kohler alleges trademark protection for product configurations is anticompetitive and inhibits product development because it precludes manufacturers from using product configurations resembling trademarked configurations. A.

TRADEMARK PROTECTION IS NOT EQUIVALENT TO A PERPETUAL PATENT Kohler asserts that granting trademark protection and allowing trademark registration for a product configuration directly conflicts with the rationale of the Constitution’s Patent Clause and the- Patent Act, 35 U.S.C. §§ 1-376 (1988). Kohler alleges that the Supreme Court’s

interpretation of the Patent Clause in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146, 109 S.Ct. 971, 975, 103 L.Ed.2d 118 (1989); Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), indicates that the TTAB and lower courts’

interpretation of the Act to allow trademark protection for product configurations contravenes the Patent Clause’s requirement that the exclusive right to ‘Writings and Discoveries” be for a “limited Time[ ].” To analyze the soundness of Kohler’s claim that courts’

interpretation of the Act runs afoul of the Patent Clause and implementing patent law, a brief discussion of the purpose of each is necessary. To obtain patent protection, an applicant has to show that an'invention or design is both novel and “not obvious at the time the invention was made to a person having ordinary skill in the art to which said art pertains.” 35 U.S.C. § 103 (1988).

Patent protection is limited in duration: utility patents last for seventeen years, 35 U.S.C. § 154 (1988), and design patents extend for fourteen years, 35 U.S.C. § 173 (1988).' The innovation passes into the .public domain after the patent expires. Compared to patent protection, trademark protection is relatively weak because it precludes competitors only from using marks that are likely to confuse or deceive the public. Trademark protection is dependent only on public reaction to the trademark in the marketplace rather than solely on the similarity of the configurations.

See Jay Dratler, Trademark Protection for Industrial Designs, 1988 U.Ill.L.Rev. 887, 896 (1988) [hereinafter Dratler, Industrial Designs]. An applicant for trademark protection need prove only that the proposed trademark is distinctive; that is, that it is either arbitrary, suggestive, or descriptive and has secondary. meaning. Although patent rights are limited in duration by statute, trademark rights may continue as long as the'mark is used to distinguish and identify.

Significantly, while a patent creates a type of monopoly pricing power by giving the patentee the exclusive right to make and sell the innovation, a trademark gives the owner only the right to preclude others from using the mark when such use. is likely to cause confusion or to deceive. See 1 McCarthy on Trademarks § 2.05[1). In Aronson v.

Quick Point Pencil Co., 440 U.S. 257, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979), the Supreme Court described the policies underlying the federal' patent law as follows: First, patent law seeks to foster and reward invention; second, it promotes disclosure of inventions to stimulate further innovation and to permit the public to practice the invention once the patent expires; third, the stringent requirements for patent protection seek to assure that ideas in the public domain' remain there for the free use of the public. Id. at 262, 99 S.Ct. at 1099 (citing Kewanee Oil Co. v.

Bicron Corp., 416 U.S. 470, 480-81, 94 S.Ct. 1879, 1885-86, 40 L.Ed.2d 315 (1974)). As the Third Circuit noted in Merchant & Evans v. Roosevelt Building Products, 963 F.2d 628 (3d Cir.1992), “[t]he keystone of patent law is originality. In exchange for making public an innovation in utility or design, the patent laws grant the innovator a temporary monopoly, after which the innovation passes into the public domain.” Id. at 639. The Supreme Court identified the policies promoted by federal trademark law in Park ’N Fly, Inc. v.

Dollar Park and Fly, Inc., 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985): The Lanham Act provides national protection of trademarks in order 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 protection 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. Id. at 198, 105 S.Ct. at 663; see also 15 U.S.C. § 1127 (listing purposes of Lanham Act).

Kohler forthrightly concedes that in W.T. Rogers Co. v. Keene, 778 F.2d 334 (7th Cir.1985), this court considered and rejected the claim that granting trademark protection for product configurations conflicts with the Patent Clause and patent law. As Judge Posner noted in W.T. Rogers: provided that a defense of functionality is recognized, there is no conflict with federal patent law, save possibly with 35 U.S.C. § 171, which allows a 14-year patent to be granted for a nonfunctional ornamental design — a design patent. But the courts that have considered the issue have concluded, rightly in our view, that this

section does not prevent the enforcement of a common law trademark in a design feature. See discussion in 1 Chisum, Patents § 1.04[6] (1985). The trademark owner has an indefinite term of protection, it is true, but in an infringement suit must also prove secondary meaning and likelihood of confusion, which the owner of a design patent need not do; there is therefore no necessary inconsistency between the two modes of protection. Id. at 337.

In sum, courts have consistently held that a product’s different qualities can be protected simultaneously, or successively, by more than one of the statutory means for protection of intellectual property. See, e.g., Bonito Boats, 489 U.S. at 154, 109 S.Ct. at 979 (federal patent laws, do not preclude states from enacting regulations to protect business’s use of trademarks, labels, or trade dress to prevent consumer confusion); Kewanee Oil Co. v.

Bicron Corp., 416 U.S. 470, 476-78, 94 S.Ct. 1879, 1883-84, 40 L.Ed.2d 315 (1974) (patent protection extends to elements not adequately protected by copyright); Application of Mogen David Wine Corp., 328 F.2d 925, 930 (C.C.P.A.1964) (Trademark rights that happen to continue beyond the expiration date of a patent on the same product do not extend the patent grant, because the two forms of protection “exist independently ... under different law and for different reasons.”); In re Yardley, 493 F.2d 1389, 1394 (C.C.P.A.1974) (because “Congress has not provided that an author-inventor must elect between securing a copyright or securing a design patent,” the court allowed both forms, of protection to stand); see also Coach Leatherware Co. v.

AnnTaylor, Inc., 933 F.2d 162, 172 (2d Cir.1991) (Winter, C.J., concurring in part and dissenting in part) (there are “fine but important distinctions between the legal protections offered by design patents, copyrights and trademarks”); see generally Dratler, Industrial Designs, 1988 U.Ill.L.Rev. 887, 922-24, 936-37. Kohler disagrees with our view that patent and trademark law are distinct areas of law. Instead, Kohler maintains that in light of the Supreme Court’s holdings in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989); Compco Corp. v.

Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), and Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), Moen’s faucet and faucet handle are not protected under the Act because unpatented goods may be freely copied. In all three cases that Kohler relies upon, the Supreme Court examined state unfair competition laws to evaluate whether federal patent law preempted their application.

The Court in each case held that a state’s unfair competition laws could'not extend patent-like protection to otherwise unprotected designs because such protection conflicted with the fed'eral policy expressed in the patent clause and patent laws of generally free trade in unpat-ented desigh and utilitarian concepts. See Bonito Boats, 489 U.S. at 152-54, 109 S.Ct. at 978-79 (discussing Sears and Campeo decisions). We disagree with Kohler’s sweeping conclusion that the Supreme Court’s holdings in Sears, Compeo, and Bonito Boats preclude trademark protection for product configurations.

In the Sears/Compco decisions, the Supreme Court reviewed two decisions from this court which held that Illinois unfair competition law prohibited unauthorized copying of unpatentable lighting fixture designs. The Supreme Court held in both eases that federal copyright and patent law preempted the state unfair competition law which prohibited the copying of a nonpatented product. Sears, 376 U.S. at 231-32, 84 S.Ct. at 789; Compco, 376 U.S. at 237-38, 84 S.Ct. at 782.

Kohler argues that because state unfair competition and federal trademark law serve the same purpose, federal patent law.also conflicts with federal trademark law. Kohler is mistaken.. First, no Lanham Act issue was raised in either Sears or Compco; the decision in each case was based on the Supremacy Clause. Second, the Court in Compco noted that a defendant may Qopy at will if the design is “not entitled to a design patent or other federal statutory protection....” Compco, 376 U.S. at 238, 84 S.Ct. at 782.

Of course, the Lanham Act falls under the rubric of “other federal statutory protection,” and courts have expressly held that Sears and Compco do not preclude federal trademark protection of designs. See, e.g., Esercizio v. Roberts, 944 F.2d 1235, 1241 (6th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992); In re Teledyne Indus., Inc., 696 F.2d 968, 971 n. 4 (Fed.Cir.1982); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204 (2d Cir.1979); In re Honeywell, Inc., 497 F.2d 1344, 1349 (C.C.P.A.1974); Rolls Royce Motors, Ltd. v.

A & A Fiberglass, Inc., 428 F.Supp. 689, 692 (N.D.Ga.1977). In Bonito Boats, the Supreme Court unanimously held that a Florida statute granting perpetual patent-like protection to a boat hull design already on the market conflicted with federal patent law and was therefore invalid under the Supremacy Clause. In arriving at this holding, the Court reaffirmed the proposition stated in Sears and Compco that “publicly known design and utilitarian ideas which were unprotected by patent occupied much the same position as the subject matter of an expired patent” — they were unprotected.

Bonito Boats, 489 U.S. at 152, 109 S.Ct. at 978. Kohler seizes upon this language as a broad proclamation that the preemption principles set forth in Sears and Compco stand unaltered. Kohler argues that Bonito Boats reaffirmed the Sears and Compco and that the preemption principles set forth in those eases should be read to preclude federal trademark protection for product configurations. As in Sears, however, the Bonito Boats Court recognized that states have the power to give unfair competition and trademark protection to trade dress.

In rejecting a broad preemptive argument that would preclude states from protecting trade dress (an argument Kohler .contends applies to federal trademark protection for product configuration); the Court stated: That the extrapolation of such a broad pre-emptive principle from Sears is inappropriate is clear from the balance struck in Sears itself.

The Sears Court made it plain that the States “may protect businesses in the use of their trademarks, labels, or distinctive dress in the packaging of goods so as to prevent others, by imitating such markings, from misleading purchasers as to the source of the goods.” ... Trade dress is, of course, potentially the subject matter of design patents. See W.T. Rogers Co. v. Keene, 778 F.2d 334, 337 (CA7 1985). Yet our decision in Sears clearly indicates that the States may place limited regulations on the circumstances in which such designs are used in order to prevent consumer confusion as to source.

Thus, while Sears speaks in absolutist terms, its conclusion that the States may place some conditions on the use of trade dress indicates an implicit recognition that all state regulation of potentially patentable but unpatented subject matter is not ipso facto pre-empted by the federal patent laws. Bonito Boats, 489 U.S. at 154, 109 S.Ct. at 979. The Court’s holding in Bonito Boats is also inapplicable to federal trademark law because the Florida statute granted boat manufacturers patent-like rights far. exceeding any right available under the Lanham Act.

The Court described the Florida statute as endowing boat manufacturers protected by the state statute with much greater rights than are available under federal patent law: [T]he Florida statute at issue here ... offers protection beyond that available under the law of unfair competition or trade secret, without any showing of consumer confusion, or breach of trust or secrecy. * :]e * * * * The Florida law substantially restricts the public’s ability to exploit an unpatented design in general circulation, raising the specter of state-created monopolies in a host of useful shapes and processes for which patent protection has been denied or is otherwise unobtainable.

It thus enters a field of regulation which the patent laws have reserved to Congress. Id. at 167, 109 S.Ct. at 986. As described earlier in this opinion, the underlying policies of federal trademark law, and the nature of the protection afforded, do not approximate the sweeping, perpetual patent-like state statutes that the Supreme Court found impermissible in Sears, Compco, and Bonito Boats. In Two Pesos, Inc. v. Taco Cabana, Inc., — U.S.-, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992), the Supreme Court held that if a restaurant’s trade dress is inherently distinctive under § 43(

a) of the Act, 15 U.S.C. § 1125(a), there is no requirement that the business also prove secondary meaning to obtain protection under the Lanham Act. To reach this issue, however, the Court first had to accept that trade dress is a protectable trademark. Id. at-, 112 S.Ct. at 2759. The Court criticized the Second Circuit’s line of decisions refusing trademark protection for “unregistered but inherently distinctive marks of all kinds, whether the claimed mark used distinctive words or symbols or distinctive product designs.” Id. at-, 112 S.Ct. at 2759 (emphasis added).

In holding that inherently distinctive trade dress was entitled to protection under the Act, the Court noted: 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 protection 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.” Id. at -, 112 S.Ct., at 2760 (quoting Park ’N Fly, 469 U.S. at 198, 105 S.Ct. at 663). The Court was not directly confronted in Two Pesos with the issue of whether product configurations were protected trade dress under § 43 of the Act.

Nonetheless, the Court’s discussion of the Fifth Circuit’s approach to trade dress protection suggested that any conflicts between the patent laws and the Lanham Act should be resolved by a careful application of traditional bases for determining the propriety of trademark protection such as likelihood of confusion, functionality, and distinctiveness: 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 according the design trademark protection.... This serves to assure that competition will not be stifled by the exhaustion of a limited number of trade dresses. Id. at -, 112 S.Ct. at 2760-61 (citation' omitted).

Kohler’s contention that even a remote potential for conflict between trademark law and design patent law requires the reversal of this circuit’s settled precedent and rejection of the uniform holdings of every court to consider the issue, ignores the Supreme Court’s observation in Two Pesos that sensitive application of the principles governing trademark recognition can avert the threat of a perpetual trademark “monopoly.” See also Dratler, Industrial Design, 1988 U.Ill.L.Rev. 887, 936 (“Because trademark principles reveal their potential for conflict with patent goals only when applied to specific facts, courts should attempt to achieve that harmony by analyzing the conflict in the context of specific facts.

In short, any perceived conflict should be resolved not on the face of the law, but only on the law as applied.”). Furthermore, a fundamental rule of statutory construction requires that statutes are to be construed, if possible, in harmony with the Constitution and other applicable statutes. See New York v. Ferber, 458 U.S. 747, 769 & n. 24, 102 S.Ct. 3348, 3361 & n. 24, 73 L.Ed.2d 1113 (1982) (collecting cases). Indisputably, some of the concerns expressed in Sears, Compeo, and Bonito Boats regarding state law conflicts with the patent laws are also valid with respect to federal legislation.

It could be argued that Congress could conceivably enact legislation conferring perpetual patent-like monopolies that would conflict with the patent clause’s requirement that exclusive rights to authors and inventors be only “for limited Times.” U.S. Const, art. I, § 8, cl. 8. It is apparent, however, that perpetual trademark protection under the Lanham Act for a product configuration or design is not the equivalent of impermissible perpetual patent protection! Kohler has conceded that under the facts of this ease, Moen satisfied all of the requirements for trademark protection for product configurations.

The Supreme Court’s holdings and dicta in Sears, Compeo, Bonito Boats, and Two Pesos offer no reason for this court to hold that every court that has allowed federal trademark protection for product configurations was mistaken. B. TRADEMARK PROTECTION IS NOT ANTICOMPETITIVE Kohler also alleges that allowing trademark protection for product configurations is anticompetitive and inhibits product development. Rather than extending trademark protection to product configurations, Kohler argues, courts should refuse such protection and require manufacturers to label then-products to prevent consumer confusion.

Finally, Kohler maintains that any change in the extent of trademark protection accorded to product configurations should come only from Congress. Kohler contends that granting trademark protection to product configurations conflicts with public policy favoring competition and disfavoring monopolies. As we noted earlier, trademarks are not monopolies. Others can produce designs similar to the trademark so long as there is no likelihood of consumer confusion. Furthermore, Kohler conceded in the district court that granting trademark protection to Moen will not preclude others from making faucets or faucet handles.

We recognized in W.T. Rogers Co. v. Keene, 778 F.2d at 339, that granting trademark protection to a nongeneric and nonfunctional product design does not stifle competition. We noted that, “[s]ince the supply of distinctive names and symbols usable for brand identification is . very large, indeed for all practical purposes infinite, competition is not impaired by giving each manufacturer a perpetual ‘monopoly of his identifying mark;' such marks are not a scarce input into the production of goods.” W.T. Rogers, 778 F.2d at 339.

Kohler admits the configuration of Moen’s faucet and faucet handle is not functional; i.e. the trademarked feature would not be “found in all or most brands of the product even if no producer had any desire to have his brand mistaken for that of another producer .... [A] functional feature is one which competitors would have to spend money not to copy but to design around.” W.T. Rogers, 778 F.2d at 339; see also Schwinn Bicycle, 870 F.2d at 1188-89; Service Ideas, Inc. v. Traex Corp., 846 F.2d 1118, 1123 (7th Cir.1988).

Kohler has not challenged Moen’s claim that the configuration of its faucet and faucet handle is designed solely to differentiate the source of these particular products from those of other manufacturers. We decline to accept Kohler’s invitation to overrule our decisions holding that functionality is a valid criterion for evaluating the propriety of trademark protection. Kohler’s claim that trademark protection for product configurations undermines product development is both unpersuasive and unsupported.

As discussed earlier, such a conclusion is possible only if the- underlying policies and protections of federal trademark and patent law are ignored. Patents encourage the type of innovation that advances the progress of “Science and the useful Arts,” and patent law imposes a high standard for patentable protection and limits patent grants to a fixed term. Trademark law protects a producer’s right to select an identifying name or symbol for his brand and exclude others from using it.

Moreover, “[j]ust as the economic rewards of trademark protection encourage discovery and invention, so do the economic rewards of trademark protection encourage creative effort in marketing.” Dratler, Industrial Designs, 1988 U.Ill.L.Rev. 887, 927-28. Innovation in product design and marketing for the purpose of enhancing producer identity reduces the costs to consumers of informing themselves about the product source so that they can either continue purchasing the products from particular producers or avoid the products from'those producers altogether. See W.T.

Rogers, 778 F.2d at 338; see also Note, Promotional Goods and the Functionality Doctrine: An Economic Model of Trademarks, 63 Tex.L.Rev. 639, ,656-62 (1984). Kohler’s contention that Congress must amend federal trademark law to rectify the lower courts’ “novel and expansive

interpretation of the trademark laws” was undermined by the Supreme Court in Bonito Boats. There the Court noted that Congress’s adoption of § 43(

a) of the Lanham Act and the longstanding coexistence of the patent statute with unfair competition law are “affirmative indications” that unfair competition law is “consistent with the [policy] balance struck by the patent laws.” Bonito Boats, 489 U.S. at 166, 109 S.Ct. at 985. As noted earlier, we perceive no unavoidable conflict between the patent law and federal trademark law as applied to product configurations. IV. CONCLUSION The district court’s judgment is Affikmed. . The Lanham Act, or Trademark Act of 1946, is the federal trademark statute. See. 15 U.S.C. §§ 1051-1127 (1988).

Congress extensively revised the Lanham Act • in the Trademark Law Revision Act of 1988. See Trademark Law Revision Act of 1988, Pub.L. No. 100-667, tit. I, 102 Stat. 3935, 3935. The revisions, did not take effect until November 16, 1989, one year after their enactment. . The dissent misconstrues our deference to the reasonable

interpretation of the agency charged with the administration of the Lanham Act under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), with an abandonment of our obligation to review the constitutional challenges raised by Kohler. It is a basic canon of statutory

interpretation that a court should not defer to an agency's

interpretation of a statute that raises serious constitutional concerns if "there is another

interpretation, not raising these serious constitutional concerns, that may be fairly ascribed to [the statute].” Edward I. De Bartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 577, 108 S.Ct, 1392, 1398, 99 L.Ed.2d 645 (1988). Of course, we defer to an agency’s statutory

interpretation but only after we have determined in the first instance that the agency's

interpretation -does not raise serious constitutional concerns. As our independent analysis reveals, the agency's determination that federal trademark protection is available for product configurations fails' to raise such concerns. That the Patent and Trademark Office did not initially allow registration of overall product configurations as trademarks does not preclude us from deferring to the agency's

interpretation of that statute, which has been consistent for the last twenty years. While the Supreme Court has noted that "[a]s a general matter ... the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views,” Pauly v. Bethenergy Mines, Inc.,-U.S. -,-, 111 S.Ct. 2524, 2535, 115 L.Ed.2d 604 (1991), the Court also has emphasized that "[a]n initial agency

interpretation is not ... carved in stone.” Chevron, 467 U.S. at 863, 104 S.Ct. at 2792. An agency is obliged to insure that its

interpretation is reasonable by referring to "varying

interpretations and the wisdom of its policy on a continuing basis.” Id. at 863-64, 104 S.Ct. at 2792. The Patent and Trademark Office has fulfilled its obligation to ensure that its

interpretation of § 43 is reasonable, and its determination that product configurations ipay be protected under the Lanham Act is entitled to some deference. . While the agency action in Chevron involved a legislative regulation, the Chevron standards of deference are applied to most agency actions, including administrative adjudications such as those by the TTAB. See K. Davis, Administrative Law Treatise, § 29:16-7 (1992 Supp.); see also EEOC v.

Arabian American Oil Co., 499 U.S. 244, 260, 111 S.Ct. 1227, 1236, 113 L.Ed.2d 274 (1991) (Scalia, J., concurring) (“In an era when our treatment of agency positions is governed by Chevron, the 'legislative rules vs. other action’ dichotomy ... is an anachronism."); Chemical Mfrs. Ass’n v. Natural Resources Defense Council, 470 U.S. 116, 125-26, 105 S.Ct. 1102, 1107-08, 84 L.Ed.2d 90 (1985) (applying Chevron to Environmental Protection Agency’s case-by-case variance determinations as well as 'its regulations); Eastman Kodak Co. v. Bell & Howell Document Mgt. Prods. Co., 994 F.2d 1569, 1571-72 (Fed.

Cir.1993) (applying Chevron to TTAB adjudication); Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1327 (7th Cir.1990) (applying Chevron to Environmental Protection Agency administrative order). . . The Federal Courts Improvement Act of 1982, Pub.L. No. 97-164 § 127(a), 96 Stat. 25, 38, created a new Court of Appeals for the Federal Circuit by merging the Court of Claims and the Court of Customs and Patent Appeals. The Federal Circuit now has exclusive jurisdiction of TTAB decisions as provided in 15 U.S.C. § 1071. See 28 U.S.C. § 1295(a)(4)(B). In South Corp v.

United States, 690 F.2d 1368 (Fed.Cir.1982), the Federal Circuit adopted as precedent the decisions of the Court of Claims and the Court of Customs, and Patent Appeals. . Registration on the Principal Register requires proof that the mark is either (1) arbitrary or inherently distinctive, or (2) has become distinctive through the acquisition of secondary meaning, i.e. consumers associate the shape with a single source. Two Pesos, Inc. v. Taco Cabana, Inc., -U.S. -, --, 112 S.Ct. 2753, 2757-58, 120 L.Ed.2d 615 (1992). .

The United States Constitution's Patent Clause gives Congress the power: To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and discoveries. U.S. Const, art. I, § 8, cl. 8. .

Section 45 of the Act, which contains the statutory definition of "trademark,” states that the word, name, symbol or device must be used "to identify ... and distinguish” the trademark owners' goods “from those manufactured or sold by others." 15 U.S.C. § 1127 (1988). . Kohler questions the reasoning in W.T. Rogers by noting that likelihood of confusion relates only to whether there has been an infringement, not whether product configuration is entitled to trademark protection in the first place. Of course, the "likelihood of confusion” requirement referred to in W.T.

Rogers for infringement actions emphasizes that a trademark right is not equivalent to a patent right. A design patent gives the patentee a virtually absolute monopoly in the design, while a trademark allows competitive uses of a protected design so long as such uses do not create consumer confusion. We disagree with Kohler’s claim that the test for infringement in a design patent case is "essentially the same” as the infringement test for a trademark infringement case.

Kohler maintains that this purported equivalency in the two tests indicates that design patent plaintiffs must establish "some degree of product recognition among purchasers.” Kohler oversimplifies. The' test for trademark infringement requires proof that the trademark has acquired secondary meaning or is a distinctive, identifying mark, and that consumers are likely to be confused by the similarity of appearance. Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176, 1182 (7th Cir.1989).

Likelihood of confusion is measured by considering numerous factors; similarity of appearance is only one of those factors. See id. at 1185; Wesley-Jessen, Div. v. Bausch & Lomb, Inc., 698 F.2d 862, 866 (7th Cir.1983). By contrast, infringement of a design patent is established by proof that the designs look alike to the eye of the ordinary observer. See Gorham Co. v. White, 81 U.S. 511, 528, 20 L.Ed. 731 (1872).

"For a design patent to be infringed, however, no matter how similar two items look, ‘the accused device must appropriate the novelty in the patented device that distinguishes it from the prior art.’ ” Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444 (Fed.Cir.1984) (quoting Sears Roebuck & Co. v. Talge, 140 F.2d 395, 396 (8th Cir.1944)). . In agreeing with Kohler’s contentions, the dissent fundamentally departs from our

interpretation of the Lanham Act as applied to product configurations by viewing this judicially accepted application of the Act as conferring patent-like protection. Only if one accepts the dissent’s characterization of federal trademark protection as "patent-like’’ can the snippets of dicta drawn from Supreme Court cases involving state laws conferring perpetual patent-like protection be viewed as indirect support for the dissent’s position.

We believe that our discussion of the relevant Supreme Court cases supports our holding and refutes Kohler's claim that the Court has hinted in dicta that product configurations are not entitled to the limited protection available under the Lanham Act. The dissent's characterization of Clemens v. Belford, Clark & Co. (The "Mark Twain" case), 14 F. 728 (C.C.Ill.1883), as "analogous to, the present problem" and as a rejection of Mark Twain's "effort to acquire what amounted to copyright protection in the name of a trademark” misconstrues that court's holding. This

interpretation of Clemens demonstrates the contortions the case law must undergo to reach the dissent’s conclusion that Lanham Act protection for product configurations is the equivalent of a perpetual patent. Contrary to the dissent’s reading of Clemens, the court did not rule out trademark protection to the author's use of his pen name. Rather, the court simply held that because Twain had not obtained a copyright in his works, his writings had been dedicated to the public and anyone could publish them if they properly identified the writings as Twain’s.

Twain’s trademark infringement claim was a loser because he did not (and could not) allege that the defendants had falsely identified the origin of the published works. There was minimal risk that the public would be confused as to the source because the defendants clearly identified Mark Twain as the author; Twain simply resented that the publisher would profit due to his failure to obtain copyright protection. The court expressly stated that had.

Twain alleged that the defendants .used his name to pass off another writer’s product as Twain’s writings “perhaps he would have made a case entitling him to some relief.", Id. at 732; see also Chamberlain v. Columbia Pictures Corp., 186 F.2d 923, 925 (9th Cir.1951) (Mark Twain's heirs sued claiming that film of a "corny love story" loosely based on “The Celebrated Jumping Frog of Calaveras County” and billed as "Mark Twain’s Favorite Story” violated the Lanham Act. No trademark violation was found because there was no likelihood of confusion.); Geisel v.

Poynter Prods., Inc., 295 F.Supp. 331, 351-55 (S.D.N.Y.1968) (Use of plaintiff's name “Dr. Suess” regarding promotion and sale of dolls so as to create the false impression that the plaintiff designed, manufactured, or authorized the dolls violated the Lanham Act. Subsequent truthful promotional statements that the dolls were "based on” the plaintiff's drawings were not trademark violations.).

In sum, none of the cases cited by the dissent have treated trademark protection under the Lanham Act (or under state unfair competition laws no more protective than the Lanham Act) as a perpetual extension of a copyright or a patent. . An exaggeration of the relationship between the Lanham Act and state law of unfair competition leads the dissent, in our view, to erroneously conclude that the Lanham Act merely federalizes the common law of trademarks and unfair competition. Dissent at 646-647.

The Lanham Act was drafted in reaction to draconian state trademark legislation that threatened to interfere with interstate commerce. See Rogers, "The Lanham Act & the Social Function of Trademarks,” 14 Law & Contemp.Probs. 173, 177-84 (1949); McCarthy on Trademarks, § 5.04, p. 5-10. The Lanham Act and state common law are independent of each other, although the standards of federal registrability use terminology similar to state common law trademark standards. See NLRB v.

Natural Gas Utility Dist., 402 U.S. 600, 603-04, 91 S.Ct. 1746, 1749, 29 L.Ed.2d 206 (1971) (absent plain indication to the contrary, Congress does not intend to make application of its statutes dependent upon state law). That the Supreme Court has held that extraordinarily protective state trademark law runs afoul of the Patent Clause and Patent Act does not threaten the constitutionality of the Lanham Act as courts have applied it. The Lanham Act differs in many respects from the common law standards.

As one commentator has noted: Things such as service marks, collective and certification marks, are federally registrable, even though their common law status is doubtful. Conversely, although corporate and commercial trade names are protected by the common law, they are not federally registrable. McCarthy on Trademarks, § 7.33[2] (footnotes omitted). The Lanham Act as written and applied is not ‘‘exactly the same” as the state laws at issue in Sears, Compco, and Bonito Boats.

Thus, this court’s holding, and that of every circuit to consider the issue, does not create any conflict with the Constitution, the. patent, laws, or Supreme Court decisions. The dissent's conjuring up of the specter of design patents “made perpetual by trademarking the design” is inapposite to our holding and the facts of this case. First, there is no indication that Moen ever had or could qualify for a design patent on its products. Second, federal trademark protection does not transform the durationally limited monopoly of a design patent into a perpetual right.

As we have noted, federal trademark protection for a product’s configuration does not create a monopoly in the use of the product’s shape. Moen is not "free from effective competition in the market for a popular brand of faucet.” Dissent at 650. Moen simply has the right to preclude others from copying its trademarked product for the purpose of confusing the public as to its source. Kohler is free to copy Moen’s design so long as it insures that the public is not thereby deceived or confused into believing that its copy is a Moen faucet. .

We have defined "trade dress" as "the total image of a product, including such features as ‘size, shape, color or color combinations, texture, graphics, or even particular sales techniques.’" Roulo v. Russ Berrie & Co., 886 F.2d 931, 935 (7th Cir.1989) (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir.1983)), cert. denied, 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990). This broad definition of trade dress as applied by the courts includes product configurations. See McCarthy on Trademarks § 7.23[2].

The only distinction courts make between trade dress generally and product configuration cases in particular is to require plaintiffs asserting a claim for infringement of trade dress in product configuration under § 43(

a) of the Lanham Act to prove secondary meaning because a product’s shape is never inherently distinctive. Id. (collecting cases). This distinction is irrelevant in this case because Kohler does not dispute that Moen's products have acquired secondary meaning. . The Supreme Court granted certiorari in Bonito Boats to resolve a conflict created when the Florida Supreme Court struck down that state’s statute prohibiting the use of a direct molding process to duplicate unpatented boat hulls.

The Florida court held that the Florida law conflicted with Congress's balance in the federal patent statute between the encouragement of invention and free competition in unpatented ideas. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 515 So.2d 220 (1987). The Court of Appeals for the Federal Circuit had previously upheld a similar California law. See Interpart Corp. v. Italia, 777 F.2d 678 (1985).

The Federal Circuit concluded that the California law prohibiting the use of the direct molding process to duplicate unpat-ented articles did not conflict with the policies behind the federal patent laws. .The Supreme Court found the Federal Circuit’s "reasoning [to be) defective in several respects." Bonito Boats, 489 U.S. at 163-64, 109 S.Ct. at 984.

Nonetheless, after recounting the Federal Circuit's errors, the Cotut re-emphasized that "[a]s Sears itself makes clear, States may place limited regulations on the use of unpatented designs in order to prevent consumer' confusion as to source." Id. at 165, 109 S.Ct. at 985. . While Moen and the majority on the subject of product configuration trademarks trace the relatively recent departure of the Federal Circuit from Application of Mogen David Wine Corp., 328 F.2d 925 (C.C.P.A.1964), that case involved not the configuration of the product itself (wine) but the shape of a wine bottle — a container.

See Application of Mogen David Wine Corp., 372 F.2d 539, 544 (C.C.P.A.1967) (Smith J., concurring) (later proceeding). Mogen David did not therefore directly confront the issue raised here, although it lays some of the groundwork.