concurring.
I join in the opinion of the majority. The only decision made by the board was that the subject designs were incapable of functioning as trademarks. I agree this was error and must be reversed. These additional comments are with respect to several misconceptions I perceive in arguments advanced by appellant and in the board’s opinion and which the majority opinion does not specifically address.
Appellant asserts that it is “well settled that ‘designs which are inherently distinctive can be registered and protected as marks without the need for proof of secondary meaning’ (emphasis in original). McCarthy, TRADEMARKS & UNFAIR COMPETITION 164 (1973).” The quoted statement is taken from a discussion of the registrability of a label design and does not provide any authority for appellant’s statement with respect to the registrability of a product design, or a representation of a product.
Moreover, what appellant seeks to do here is not comparable to registering a label design as a trademark for motor oil or a bottle design for wine. Rather, the more appropriate comparison would be to registering a label design for labels, or a bottle design for bottles. There are different considerations where one seeks protection of a product design itself, and I have found no precedent in decisions of this court, or oth*1051ers, which recognizes the protectibility of any product design as a trademark for that product without proof of distinctiveness, that is, distinctiveness as an indication of origin, not simply that it is a distinctive design in the sense of being unusual. The semantics, in referring to a design as “distinctive,” impedes clarity in analysis. In any event, a product design or a representation of a product is manifestly equivalent to words which describe its appearance and must be given the same treatment as inherently descriptive words. Descriptive designations are not presumed to function as indications of origin immediately upon first use, unlike arbitrary word marks or arbitrary logo designs, but rather must be used for some period of time before acquiring the status of a trademark.1
In my view, deferred recognition of a product design as a trademark for the product not only is the law, but should remain the law for a number of reasons. The first is factual. The public simply is not likely to associate origin immediately with the shape of goods (or a representation thereof) although the more unusual the design the more quickly that is likely to occur. In our economy, we expect that similar products will come from a number of sources, and the acquisition of trademark rights in a design may be prevented by the timely entry of others into the market using the same or similar designs. On the other hand, once a design does come to indicate a source, the public interest in not being confused in the market place outweighs the right of a competitor ordinarily to imitate another’s product. Thus, deferred protection represents a balance of two competing public interests.
This assumes, of course, that the design is not “utilitarian” and I agree that the subject designs are not, for reasons stated fully in the other opinions. I would only add that denominating a feature “utilitarian” states, in effect, the conclusion that the public interest is best served by not allowing a particular design to be appropriated from the “public domain.” Like generic terms, they should remain permanently available for competitors to use freely. In re Deister Concentrator Co., 48 CCPA 952, 968, 289 F.2d 496, 505, 129 USPQ 314, 323 (1961). The board apparently believed that a design which is “descriptive or functional and for that reason is not registrable . . . may be subject to some judicial protection against copying.” The board’s discussion of why features which make a product successful in the market place are “functional” has no legal significance if the features can be exclusively appropriated, that is, are subject to “judicial protection.”
With respect to the aesthetics of a product, the better reasoned authorities have come down on the side of recognition of exclusive rights, after the public has learned to associate those aesthetics with a single source,2 thereby encouraging the development of different designs and providing a wider range of selection in the market *1052place. Diversity in the market place is viewed by such courts as a desirable public objective, and it is an objective with which I am in agreement.3
Another matter of public policy, which appears to have concerned the board, is that if trademark rights are recognized in a picture of a product, the product design itself may be perpetually protected, contrary to the limited term of protection afforded some designs under the copyright or design patent statutes. If that concern were overriding, only a design not subject to such protection would be available for appropriation as a mark while a more original design would not. Or one would have to elect which type of protection to seek. Or no trademark protection at all should be given any product designs since trademarks by their nature are for no fixed time period.
Given the differing concepts of these statutes, this court has adopted the position that each statute must be interpreted independently of the other, In re Deister, supra, and that no one of these statutes, affording protection to a design, preempts the other, In re Mogen David Wine Co., 51 CCPA 1260, 328 F.2d 925, 140 USPQ 575 (1964). If the doll and/or the cartoon drawing and/or the package design are copyrightable subject matter,4 these rights of limited duration are not the totality of rights Congress has provided for the subject product designs but merely part of them.5 Thus, their existence does not afford a basis for refusing to grant a registration for the doll, or a representation of the doll, as a trademark, if it would otherwise qualify for registration under the Lanham Act.
A basic misconception in this connection is that registration or recognition as a trademark would secure perpetual rights in the doll design. Trademark rights can only be found to exist or not to exist at a particular point in time, and registration neither extends the period of one’s right of exclusive use nor guarantees protection at any time in the future. The responsibility of the Patent and Trademark Office is to determine whether registration of a particular design would interfere with the legitimate rights of any other source or potential source of competing, or related, goods at the time the application is processed. None have been identified here. Obviously, the subject designs are not necessary for competition if their use by others can be entirely barred under the copyright statute. If others become entitled to use the designs upon the expiration of copyright protection, the continued registration of the designs as trademarks may be addressed in the context of a conflicting claim of a right to use, but the question of possible loss of rights is not before us.6
*1053Moreover, the existence of copyright or patent protection in a product design does not insure the acquisition of any trademark rights. Only public reaction to one’s actual use of the design can lead to protection as a trademark, a factual question that remains despite the right to keep others from using one’s design which may be granted under the copyright or patent statutes.
Source Versus Goods Identification
In refusing registration, both the examiner and the board sought to rely on the “truism” that a trademark functions to indicate the source of goods, not the goods themselves. The examiner expressed this principle by refusing registration on the ground that each design “relates to and identifies the goods as to kind and not as to origin.” The board advanced the same conclusion in somewhat different terms, reasoning that “the name of a game [toy?] which has no other possibly descriptive name (and the equivalent picture of a toy which has no other possibly descriptive name) is not a trademark and cannot be registered.” 7 Similarly, the solicitor argues that SUPERMAN toy doll is “a common name” and that the Superman design is a “common descriptive representation” of that doll. Each of these statements is a variation of the theory that a word, name, symbol, or device which identifies a class of goods is a generic type of identification and a unique product or product design is a class unto itself. Such an interpretation of the basic truism must be rejected. No principle of trademark law requires the imposition of penalties for originality, creativeness, attractiveness, or uniqueness of one’s product or requires a holding that the name arbitrarily selected to identify the product, or a unique product design of a product, cannot also function as an identification of source. Indeed, it is only if the product design is unique that the public may come to rely upon it as an indication of source. In re Minnesota Mining & Manufacturing Co., 51 CCPA 1546, 335 F.2d 836, 142 USPQ 366 (1964).
The rationale adopted by the PTO in this case loses sight of the basic objectives underlying trademark law: protection of trade identity, which may be the most valuable asset of a business, and protection of the public from confusion created by those who would encroach on an identity which the public associates with another. Any truism of trademark law cannot be applied as a mere legalism, but rather must be interpreted in light of these objectives and should reflect regular commercial practices and normal commercial speech.
The above “truism” has meaning in the context of the market place in seeking an answer to the question: Does the asserted mark distinguish one manufacturer’s or merchant’s goods? It states no more than the basic concepts that a word, name, symbol, or device which is inherently descriptive (and has not acquired distinctiveness) or a term which is inherently generic or which the public has made generic does not, in fact, distinguish the goods of a particular source. The application of the truism depends upon how the public perceives and uses the asserted mark, as well as upon accepted business practices. It becomes sophistry if the generic nature of a word or name depends on how broadly or narrowly the board, or a court, defines a “kind” of “class” of goods. Competing products in our economy need not be precisely identical. Competitive products are commonly promoted on the basis of their differences, the better brightener in a toothpaste or detergent, the more effective relief of an analgesic, antihistamine, or eye wash, the more alluring fragrance of a particular perfume, the appealing design of particular tableware, automobiles or jeans, the greater dur*1054ability of a particular maker’s washing machine, the greater excitement of playing a particular game, the long-lasting quality of a particular makeup, the unique flavor of a brand of chicken, beer, soup, pie or pizza, the better results of a particular weight control program or speed reading course, the sound of a particular musical group. Under the PTO view, each of these products and services could be deemed a “kind” or “class,” and the particular means by which the public identifies it would be condemned as a generic designation regardless of its useful function to the public. Trademark protection would then be limited to house marks and to marks for fungible goods and would be eliminated for trademarks (whether name or design) applied to single products available only from single producers.
The principle that a trademark must indicate “source” and not “goods” does not condemn single product word marks or designs. A word, name, symbol or device indicates “source” within the meaning of the truism if it indicates goods of one producer to the public, and it indicates “goods” if the public does not identify the asserted mark with goods from a particular source. The board apparently interpreted the truism as imposing a requirement that to indicate “source,” a word, name, symbol, or device must not identify goods of anyone. This misunderstanding led the board and has led some courts into an esoteric and extraneous inquiry focusing on what motivates the purchasing public to buy particular goods, the product itself or the source. Once it is understood that a trademark is functioning to indicate “source” when it identifies goods of a particular source, the truism then reflects the above-stated objectives of trademark law and the way trademarks actually function in the marketplace. The reason the public is motivated to buy the product, whether because of quality, particular features, source, pleasing design, association with other goods, price, durability, taste, or prestige of ownership, is of concern to market researchers but is legally immaterial to the issue of whether a particular designation is generic. Thus, the board’s reliance on its conclusion that purchasers want appellant’s dolls “and would simply not be satisfied” with any others is misplaced. This rationale ignores the reality that the primary objective of purchasers is to obtain particular goods, not to seek out particular sources or producers, as such. Motivation does not change a descriptive term which has acquired distinctiveness or an arbitrary word, name, symbol or device into a generic designation. The correct inquiry is whether the public no longer associates what was a trademark with that single source.
Similarly, that purchasers call for a particular product by the ñame given it by its producer or source does not negate its function as a mark. Such a given name is a proper name, like the name of an individual, not a generic name, so long as the public uses it to identify a product of a single source. It is the riormal way the public uses a mark which is applied by a manufacturer or a merchant to a particular product, and, as indicated, trademark concepts do not require the condemnation of normal commercial language. Trademark law merely condemns the use of that language in a way which deprives purchasers of their expectations and deprives businesses of the goodwill which they have built up by providing satisfactory goods and services. For the same reason, that a trademark is well known does not make it a “common” descriptive name. “Common,” like “generic,” states a conclusion that the claimed mark is, or has become, part of the vernacular, that it is indefinite, and does not function as a proper name of a particular producer’s goods.
No doubt producers would like trademark law to offer continuous protection as a matter of right merely because of their efforts or investments in creating products and goodwill. However, trademark protection takes its lead from the public. Protectibility is lost when the public uses what was a proper name to denominate like or similar goods from other sources as well. It no longer serves the public as a mark.
Thus, to refuse registration on the ground that an applicant seeks to register *1055the generic name of the goods, the PTO must show that the word or expression inherently has such meaning in ordinary language,8 or that the public uses it to identify goods of other producers as well. In re G. D. Searle & Co., 53 CCPA 1192, 360 F.2d 650, 149 USPQ 619 (1966). In the absence of actual competition, I believe it is beyond the province of the board to speculate whether an arbitrary designation may become generic. Public usage is simply not predictable.
Since the board’s premise with respect to word marks is in error, any conclusion drawn therefore with respect to product designs must also fail. With respect to product designs, registration, at least on the Supplemental Register, should not be refused as incapable of being a mark unless the design is common or functional.
. I find this inherent in Judge Rich’s analysis. However, I cannot subscribe to Judge Rich’s opinion insofar as it is based on the premise that “the doll configuration is actually a three-dimensional representation of a ‘trademark’.” One must designate for what goods the design is a trademark to avoid treating a trademark as a right in gross. Thus, even assuming that the SUPERMAN doll is a representation of a trademark for comic books (for which a variation of the subject design is registered) and could be a three dimensional trademark for such goods if used in association with their sale, the doll does not thereby become a trademark for itself, that is, for dolls, although the comic book registration would be pertinent evidence of secondary meaning. Trademark Manual of Examining Procedure! 1211.03. Moreover, this pre-existing “trademark” analysis does not comport with the record concerning appellant’s JOKER design which has not previously been registered or proved to be a trademark for other goods. Appellant’s exhibits show only various action poses of the JOKER character on the cover of a notebook and in or on comic books. Contrary to appellant’s argument, not every display of these designs on goods is trademark usage. For example, the appearance of the JOKER in a story in a BATMAN comic book does not make the JOKER a trademark for the book.
. Vuitton et Fils S. A. v. J. Young Ent. Inc., 644 F.2d 769, 210 USPQ 351; 212 USPQ 85 (CA 9 1981); Keene Corp. v. Paraflex Ind., Inc., 656 F.2d 722, 825, 211 USPQ 201, 203-04 (CA 3 1981).
. The opinions where courts have, in infringement actions, used the expression “aesthetic functionality” or the like will, on close examination, be found to involve other factors, such as loss of rights by acquiescence in use by others.
. A copyright notice appears on the body of the doll as well as on the package. Appellant has asserted that the design is copyrighted, but no other evidence is of record.
. 15 U.S.C. § 1091 specifically provides in pertinent part:
Nature of mark. For the purposes of registration on the supplemental register, a mark may consist of any trademark, symbol, label, package, configuration of goods, name, word, slogan, phrase, surname, geographical name, numeral, or device or any combination of any of the foregoing, but such mark must be capable of distinguishing the applicant’s goods or services. [Emphasis added.]
For purposes of this discussion I am accepting the board’s premise that the subject designs are representations of the respective products.
. In this respect, a product design raises a somewhat different issue of public interest from a container design. Just as the same word mark may be used as a trademark by producers of disparate goods without confusion of the public, the same or similar container designs could be used without confusion on unrelated goods or could be sold simply as a container. Thus, on expiration of patent protection in a container design, that design could be used legitimately by others to some extent despite the continued existence of trademark rights. On the other hand, if a copyrighted doll design is also a trademark for itself, there is a question whether the quid pro quo for the protection granted under the copyright statute has been given, if, upon expiration of the copyright, the design cannot be used at all by others. Whether there should be a temporary, perma*1053nent, or no loss of trademark protection at that time must await resolution in an appropriate case and I merely note the problem. At least during the term of copyright here, if any, I find no reason to deny trademark rights.
. In re Cooper, 45 CCPA 923, 254 F.2d 611, 117 USPQ 396, cert. denied, 358 U.S. 840, 79 S.Ct. 63, 3 L.Ed.2d 75 (1958), cited by the board, stands for no more than that the name of a single book is generally not deemed a trademark for the book.
. This was the thrust of Judge Rich’s concurrence in In re Abcor Dev. Corp., 58 F.2d 811, 815, 200 USPQ 215, 219 (Cust. & Pat.App. 1978), and, thus, does not provide support for the board’s decision here.