Rereading the oral argument in Wal-Mart

As you do, and I had to quote my favorite wacky Justice Breyer question ever (and there are a lot of choices out there): QUESTION: Well, why should [trade dress protection] always [require secondary meaning]? I mean, you could have a weird situation. Imagine you made a hair brush in the shape of a grape, you know, and they continuously–that was it. It's called the grape hairbrush, and that's it. I mean, that's so weird that I guess that people would pick it up. MR. COSTON: I submit, Justice Breyer, that–that unless it had bristles, it wouldn't be– QUESTION: It does. I mean, you know, that's not the point. As I said at the time: only a bald man could imagine a hairbrush shaped like a grape. Justice Scalia went with the more plausible (indeed, extant) cocktail shaker shaped like a penguin in the written opinion. ETA: They continued! MR. COSTON: The–the grape brush I submit says nothing to the consumer about source. QUESTION: Oh, yes, it does after a while. MR. COSTON: After a while. QUESTION: I mean, sure–no, no, no. All the products are grape. I mean, you know, you wonder what's it–going on here with this grape, et cetera. I mean– MR. COSTON: Well, I–I agree– QUESTION: It was like the– MR. COSTON: –that after a while the market would acknowledge that the grape hairbrush came from a certain company, but that's the point of secondary meaning, that it has to show to the consumer– QUESTION: It's a whole line. It's a grape hairbrush, a grape comb, a grape hair curler, and a grape–you know, et cetera. And so, almost instantly when you see it there, you get the idea.

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