This article will examine whether and, if so, how the Two Pesos decision affected the progress and predictability of trade dress law in the years that followed. While the decision brought many important issues to the forefront, there is probably more uncertainty now than before the decision regarding the protectability of trade dress. The courts, especially the Supreme Court, have not done a very good job of articulating clear standards for those who, in the "real world," need guidance and predictability in the development of their marks and design of their products. The courts have continued to apply the Abercrombie & Fitch taxonomy to types of marks to which the Abercrombie & Fitch categories just don't fit.
To understand Two Pesos, one should first try to understand the climate of expanding trade dress protection when this case was brought to the Supreme Court for resolution, and then remember that the decision dealt only with the specific issue of resolving an inter-circuit split regarding “secondary meaning” and “inherently distinctive” trade dress. By refusing to consider the issue in the petition for certiorari related to “functionality,” the Court restricted itself to an analysis that did not create essential guidelines for the recognition of trade dress that may be “inherently distinctive,” and therefore worthy of protection upon adoption. In doing so, the Court chose not to set forth any method to differentiate trade dress that can immediately identify source from trade dress that can do so only upon a showing of acquired distinctiveness