author: Justice Souter

text:
    CORTEZ BYRD CHIPS, INC. v. BILL HARBERT CONSTRUCTION CO., A DIVISION OF BILL HARBERT INTERNATIONAL, INC.
    No. 98-1960.
    Argued January 10, 2000
    Decided March 21, 2000

      Souter, J., delivered the opinion for a unanimous Court.

      Daniel H. Bromberg argued the cause for petitioner. With him on the briefs were John L. Maxey II and John F. Hawkins.

      Susan S. Wagner argued the cause for respondent. With her on the brief was Edward P. Meyerson.

   Justice Souter

delivered the opinion of the Court.

This case raises the issue whether the venue provisions of the Federal Arbitration Act (FAA or Act), 9 U. S. C. §§9-11, are restrictive, allowing a motion to confirm, vacate, or modify an arbitration award to be brought only in the district in which the award was made, or are permissive, permitting such a motion either where the award was made or in any district proper under the general venue statute. We hold the FAA provisions permissive.

I

Petitioner Cortez Byrd Chips, Inc., and respondent Bill Harbert Construction Company agreed that Harbert would build a wood chip mill for Cortez Byrd in Brookhaven, Mississippi. One of the terms was that “[ajll claims or disputes between the Contractor and the Owner arising out [of] or relating to the Contract, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.” App. 52. The agreement went on to provide that “[t]he award rendered by the arbitrator or arbitrators shall be final, and judgement may be entered upon it in accordance with applicable law in any court having jurisdiction thereof,” ibid.; that the agreement to arbitrate “shall be specifically enforceable under applicable law in any court having jurisdiction thereof,” ibid.; and that the law of the place where the project was located, Mississippi, governed, id., at 60; 169 F. 3d 693, 694 (CA11 1999).

After a dispute arose, Harbert invoked the agreement by a filing with the Atlanta office of the American Arbitration Association, which conducted arbitration in November 1997 in Birmingham, Alabama. The next month, the arbitration panel issued an award in favor of Harbert. Ibid.

In January 1998, Cortez Byrd filed a complaint in the United States District Court for the Southern District of Mississippi seeking to vacate or modify the arbitration award, which Harbert then sought to confirm by filing this action seven days later in the Northern District of Alabama. When Cortez Byrd moved to dismiss, transfer, or stay the Alabama action, the Alabama District Court denied the motion, concluding that venue was proper only in the Northern District of Alabama, and entering judgment for Harbert for $274,256.90 plus interest and costs. Ibid.

The Court of Appeals for the Eleventh Circuit affirmed. It held itself bound by pre-1981 Fifth Circuit precedent, cf. Bonner v. Prichard, 661 F. 2d 1206, 1209 (CA11 1981), to the effect that under the Act’s venue provisions, 9 U. S. C. §§9-11, venue for motions to confirm, vacate, or modify awards was exclusively in the district in which the arbitration award was made. 169 F. 3d, at 694; Naples v. Prepakt Concrete Co., 490 F. 2d 182, 184 (CA5), cert. denied, 419 U. S. 843 (1974). The arbitration here having been held in Birmingham, the rule as so construed limited venue to the Northern District of Alabama.

We granted certiorari, 527 U. S. 1062 (1999), to resolve a split among the Courts of Appeals over the permissive or mandatory character of the FAA’s venue provisions. Compare In re VMS Securities Litigation, 21 F. 3d 139, 144-145 (CA7 1994) (§§ 9 and 10 permissive); Smiga v. Dean Witter Reynolds, Inc., 766 F. 2d 698, 706 (CA2 1985), cert. denied, 475 U. S. 1067 (1986) (§ 9 permissive); Sutter Corp. v. P & P Indus., Inc., 125 F. 3d 914, 918-920 (CA5 1997) (§§9 and 10 permissive); P & P Indus., Inc. v. Sutter Corp., 179 F. 3d 861, 869-870 (CA10 1999) (§§9 and 10 permissive); Apex Plumbing Supply, Inc. v. U S. Supply Co., 142 F. 3d 188, 192 (CA4 1998) (§9 permissive); Nordin v. Nutri/System, Inc., 897 F. 2d 339, 344 (CA8 1990) (§ 9 permissive), with Central Valley Typographical Union No. 46 v. McClatchy Newspapers, 762 F. 2d 741, 744 (CA9 1985) (§ 10 mandatory); Island Creek Coal Sales Co. v. Gainesville, 729 F. 2d 1046, 1049-1050 (CA6 1984) (§ 9 mandatory); Sunshine Beauty Supplies, Inc. v. United States District Court, Central Dist. of Cal., 872 F. 2d 310, 312 (CA9 1989) (§§ 9 and 10 mandatory); United States ex rel. Chicago Bridge & Iron Co. v. Ets-Hokin Corp., 397 F. 2d 935, 939 (CA9 1968) (§ 10 mandatory). We reverse.

HH H-<

Section 9 of the FAA governs venue for the confirmation of arbitration awards:

“If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.” 9 U. S. C. §9.

Section 10(a), governing motions to vacate arbitration awards, provides that

“the United States court in and for the district wherein the [arbitration] award was made may make an order vacating the award upon the application of any party to the arbitration [in any of five enumerated situations].”

And under § 11, on modification or correction,

“the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration.”

The precise issue raised in the District Court was whether venue for Cortez Byrd’s motion under §§ 10 and 11 was properly laid in the southern district of Mississippi, within which the contract was performed. It was dearly proper under the general venue statute, which provides, among other things, for venue in a diversity action in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U. S. C. § 1391(a)(2). If §§ 10 and 11 are permissive and thus supplement, but do not supplant, the general provision, Cortez Byrd’s motion to vacate or modify was properly filed in Mississippi, and under principles of deference to the court of first filing, the Alabama court should have considered staying its hand. Cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U. S. 180, 185 (1952); Landis v. North American Co., 299 U. S. 248, 254 (1936); 5A C. Wright & A. Miller, Federal Practice and Procedure §1360 (1990). But if §§10 and 11 are restrictive, there was no Mississippi venue for Cortez Byrd’s action, and the Northern District of Alabama correctly proceeded with the litigation to confirm. Although §9 is not directly implicated in this action, since venue for Harbert’s motion to confirm was proper in the northern district of Alabama under either a restrictive or a permissive reading of § 9, the three venue sections of the FA A are best analyzed together, owing to their contemporaneous enactment and the similarity of their pertinent language.

Enlightenment will not come merely from parsing the language, which is less clear than either party contends. Although "may” could be read as permissive in each section, as Cortez Byrd argues, the mere use of “may” is not necessarily conclusive of congressional intent to provide for a permissive or discretionary authority. United States v. Rodgers, 461 U. S. 677, 706 (1983) (“The word ‘may,’ when used in a statute, usually implies some degree of discretion^ but] [t]his common-sense principle of statutory construction ... can be defeated by indications of legislative intent to the contrary or by obvious inferences from the structure and purpose of the statute” (footnote and citations omitted)); Citizens & Southern Nat. Bank v. Bougas, 484 U. S. 35, 38 (1977). Certainly the warning flag is up in this instance. While Cortez Byrd points to clearly mandatory language in other parts of the Act as some indication that “may” was used in a permissive sense, cf. 9 U. S. C. §§2, 12, Harbert calls attention to a contrary clue in even more obviously permissive language elsewhere in the Act. See §4 (“A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28 . . ,”). Each party has a point, but neither point is conclusive. The answer is not to be had from comparing phrases.

Statutory history provides a better lesson, though, which is confirmed by following out the practical consequences of Harbert’s position. When the FAA was enacted in 1925, it appeared against the backdrop of a considerably more restrictive general venue statute than the one current today. At the time, the practical effect of 28 U. S. C. § 112(a) was that a civil suit could usually be brought only in the district in which the defendant resided. See. 28 U. S. C. § 112(a) (1926 ed.). The statute’s restrictive application was all the more pronounced due to the courts’ general inhospitality to forum selection clauses, see The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, 9-10 (1972). Hence, even if an arbitration agreement expressly permitted action to be brought in the district in which arbitration had been conducted, the agreement would probably prove to be vain. The enactment of the special venue provisions in the FAA thus had an obviously liberalizing effect, undiminished by any suggestion, textual or otherwise, that Congress meant simultaneously to foreclose a suit where the defendant resided. Such a consequence would have been as inexplicable in 1925 as it would be passing strange 75 years later. The most convenient forum for a defendant is normally the forum of residence, and it would take a very powerful reason ever to suggest that Congress would have meant to eliminate that venue for postarbitration disputes.

The virtue of the liberalizing nonrestrictive view of the provisions for venue in the district of arbitration is confirmed by another obviously liberalizing venue provision of the Act, which in §9 authorizes a binding agreement selecting a forum for confirming an arbitration award. Since any forum selection agreement must coexist with §§10 and 11, one needs to ask how they would work together if §§ 10 and 11 meant that an order vacating or modifying an arbitration award could be obtained only in the district where the award was made. The consequence would be that a proceeding to confirm the award begun in a forum previously selected by agreement of the parties (but outside the district of the arbitration) would need to be held in abeyance if the responding party objected. The objecting party would then have to return to the district of the arbitration to begin a separate proceeding to modify or vacate the arbitration award, and if the award withstood attack, the parties would move back to the previously selected forum for the confirming order originally sought. Harbert, naturally, is far from endorsing anything of the sort and contends that a court with venue to confirm under a § 9 forum selection clause would also have venue under a later filed motion under § 10. But the contention boils down to denying the logic of Harbert’s own position. The regime we have described would follow from adopting that position, and the Congress simply cannot be tagged with such a taste for the bizarre.

Nothing, indeed, would be more clearly at odds with both the FAA’s “statutory policy of rapid and unobstructed enforcement of arbitration agreements,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 23 (1983), or with the desired flexibility of parties in choosing a site for arbitration. Although the location of the arbitration may well be the residence of one of the parties, or have some other connection to a contract at issue, in many cases the site will have no relation whatsoever to the parties or the dispute. The parties may be willing to arbitrate in an inconvenient forum, say, for the convenience of the arbitrators, or to get a panel with special knowledge or experience, or as part of some compromise, but they might well be less willing to pick such a location if any future court proceedings had to be held there. Flexibility to make such practical choices, then, could well be inhibited by a venue rule mandating the same inconvenient venue if someone later sought to vacate or modify the award.

A restrictive interpretation would also place §3 and §§ 9-11 of the FAA in needless tension, which could be resolved only by disrupting existing precedent of this Court. Section 3 provides that any court in which an action “referable to arbitration under an agreement in writing” is pending “shall on application of one of the parties stay the trial of the action until such arbitration has been had in accord-anee with the terms of the agreement.” 9 U. S. C. § 3. If an arbitration were then held outside the district of that litigation, under a restrictive reading of §§9-11 a subsequent proceeding to confirm, modify, or set aside the arbitration award could not be brought in the district of the original litigation (unless that also happened to be the chosen venue in a forum selection agreement). We have, however, previously held that the court with the power to stay the action under § 3 has the further power to confirm any ensuing arbitration award. Marine Transit Corp. v. Dreyfus, 284 U. S. 263, 275-276 (1932) (“We do not conceive it to be open to question that, where the court has authority under the statute ... to make an order for arbitration, the court also has authority to confirm the award or to set it aside for irregularity, fraud, ultra vires or other defect”). Harbert in effect concedes this point, acknowledging that “the court entering a stay order under §3 retains jurisdiction over the proceeding and does not ‘lose venue.’” Brief for Respondent 29. But that concession saving our precedent still fails to explain why Congress would have wanted to allow venue liberally where motions to confirm, vacate, or modify were brought as subsequent stages of actions antedating the arbitration, but would have wanted a different rule when arbitration was not preceded by a suit between the parties.

Finally, Harbert’s interpretation would create anomalous results in the aftermath of arbitrations held abroad. Sections 204, 207, and 302 of the FAA together provide for liberal choice of venue for actions to confirm awards subject to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the 1975 Inter-American Convention on International Commercial Arbitration. 9 U. S. C. §§ 204, 207, 302. But reading §§ 9-11 to restrict venue to the site of the arbitration would preclude any action under the FAA in courts of the United States to confirm, modify, or vacate awards rendered in foreign arbitrations not covered by either convention. Cf. 4 I. MacNeil, R. Speidel, & T. Stipanowich, Federal Arbitration Law §44.9.1.8 (1995) (discussing difficulties in enforcing foreign arbitrations held in nonsignatory states). Although such actions would not necessarily be barred for lack of jurisdiction, they would be defeated by restrictions on venue, and anomalies like that are to be avoided when they can be. True, "[t]here have been, and perhaps there still are, occasional gaps in the venue laws, [but] Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other. Thus, in construing venue statutes it is reasonable to prefer the construction that avoids leaving such a gap,” Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706, 710, n. 8 (1972); cf. Scherk v. Alberto-Culver Co., 417 U. S. 506, 516-517 (1974) (noting that “[a] contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is ... an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction,” and that “[a] parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages”).

Attention to practical consequences thus points away from the restrictive reading of §§9-11 and confirms the view that the liberalizing effect of the provisions in the day of their enactment was meant to endure through treating them as permitting, not limiting, venue choice today. As against this reasoning, specific to the history and function of a statute addressing venue where arbitration is concerned, Harbert’s citations of cases construing other special venue provisions are beside the point. We found, for example, that Congress had a restrictive intent as to venue in patent cases, see Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222, 227-228 (1957); Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561, 565-566 (1942), a restrictive intent for the sake of protecting national banks when dealing with venue for litigation against them, see Citizens & Southern Nat. Bank v. Bougas, 434 U. S., at 44, and a restrictive intent as to the geographic reach of Title VII, as evidenced by the lack of extraterritorial venue and other enforcement mechanisms in the statute, see EEOC v. Arabian American Oil Co., 499 U. S. 244, 256 (1991). But the authority of these cases is not that special venue statutes are deemed to be restrictive; they simply show that analysis of special venue provisions must be specific to the statute. With that we agree in holding the permissive view of FAA venue provisions entitled to prevail.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       The original version of § 4 referred to “the judicial code at law,” rather than Title 28. See United States Arbitration Act, 43 Stat. 883.

       “[E]xcept as provided in sections 113 to 118 of this title, no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” 28 U. S. C. § 112(a) (1926 ed.). The provision allowing suits in a diversity action in the district in which the plaintiff resided was of limited effect, as restrictive views of personal jurisdiction meant that it was often difficult to sue a defendant outside the district of his residence. Cf. International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (requiring that a defendant have minimum contacts with a forum to be subject to its judgment).

       Section 204 provides for venue in actions under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards “in any such court in which save for the arbitration agreement an action or proceeding with respect to the controversy . . . could be brought, or in such court for the district and division which embraces the place designated in the agreement as the place of arbitration. ” Section 207 states that “any party to the arbitration may apply to any court having jurisdiction under this chapter for an order confirming the award.” Section 302 applies these provisions to actions brought under the Inter-American Convention. Sections 204 and 207 were added to the FAA in 1970; §302 was added in 1990.


source: Caselaw Access Project

author: Justice Scalia

license: Public Domain

text:
    WAL-MART STORES, INC. v. SAMARA BROTHERS, INC.
    No. 99-150.
    Argued January 19, 2000
    Decided March 22, 2000

      Scalia., J., delivered the opinion for a unanimous Court.

      William D. Coston argued the cause for petitioner. With him on the briefs were Kenneth C. Bass III and Martin L. Saad.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Edward C. DuMont, Barbara C. Biddle, Alfred Mollin, Albin F. Drost, and Nancy C. Slutter.

      Stuart M. Riback argued the cause for respondent. With him on the brief was Mark I. Levy

       Briefs of amici curiae urging reversal were filed for the International Mass Retail Association by Jeffrey S. Sutton and Robert J. Verdisco; for the Private Label Manufacturers Association by Arthur M. Handler; and for Scott P. Zimmerman by Charles W. Calkins.

        H. Bartow Farr III, Richard G. Taranto, and Stephen M. Trattner filed a brief for Ashley Furniture Industries, Inc., et al. as amici curiae urging affirmance.
      Briefs of amici curiae were filed for the American Intellectual Property Law Association by Sheldon H. Klein, Michael A. Grow, and Louis T. Pirkey; for the International Trademark Association by Theodore H. Davis, Jr., Morton D. Goldberg, and Marie V. Driscoll; and for Payless Shoesouree, Inc., by William A Rudy and Robert Kent Sellers.

   Justice Scalia

delivered the opinion of the Court.

In this case, we decide under what circumstances a product’s design is distinctive, and therefore protectible, in an action for infringement of unregistered trade dress under § 43(a) of the Trademark Act of 1946 (Lanham Act), 60 Stat. 441, as amended, 15 U. S. C. § 1125(a).

I

Respondent Samara Brothers, Inc., designs and manufactures children’s clothing. Its primary product is a line of spring/summer one-piece seersucker outfits decorated with appliques of hearts, flowers, fruits, and the like. A number of chain stores, including JCPenney, sell this line of clothing under contract with Samara.

Petitioner Wal-Mart Stores, Inc., is one of the Nation’s best known retailers, selling among other things children’s clothing. In 1995, Wal-Mart contracted with one of its suppliers, Judy-Philippine, Inc., to manufacture a line of children’s outfits for sale in the 1996 spring/summer season. Wal-Mart sent Judy-Philippine photographs of a number of garments from Samara’s line, on which Judy-Philippine’s garments were to be based; Judy-Philippine duly copied, with only minor modifications, 16 of Samara’s garments, many of which contained copyrighted elements. In 1996, Wal-Mart briskly sold the so-called knockoffs, generating more than $1.15 million in gross profits.

In June 1996, a buyer for JCPenney called a representative at Samara to complain that she had seen Samara garments on sale at Wal-Mart for a lower price than JCPenney was allowed to charge under its contract with Samara. The Samara representative told the buyer that Samara did not supply its clothing to Wal-Mart. Their suspicions aroused, however, Samara officials launched an investigation, which disclosed that Wal-Mart and several other major retailers— Kmart, Caldor, Hills, and Goody’s — were selling the knockoffs of Samara’s outfits produced by Judy-Philippine.

After sending cease-and-desist letters, Samara brought this action in the United States District Court for the Southern District of New York against Wal-Mart, Judy-Philippine, Kmart, Caldor, Hills, and Goody’s for copyright infringement under federal law, consumer fraud and unfair competition under New York law, and — most relevant for our purposes— infringement of unregistered trade dress under § 43(a) of the Lanham Act, 15 U. S. C. § 1125(a). All of the defendants except Wal-Mart settled before trial.

After a weeklong trial, the jury found in favor of Samara on all of its claims. Wal-Mart then renewed a motion for judgment as a matter of law, claiming, inter alia, that there was insufficient evidence to support a conclusion that Samara’s clothing designs could be legally protected as distinctive trade dress for purposes of § 43(a). The District Court denied the motion, 969 F. Supp. 895 (SDNY 1997), and awarded Samara damages, interest, costs, and fees totaling almost $1.6 million, together with injunctive relief, see App. to Pet. for Cert. 56-58. The Second Circuit affirmed the denial of the motion for judgment as a matter of law, 165 F. 3d 120 (1998), and we granted certiorari, 528 U. S. 808 (1999).

J — I ! — I

The Lanham Act provides for the registration of trademarks, which it defines in §45 to include “any word, name, symbol, or device, or any combination thereof [used or intended to be used] to identify and distinguish [a producer’s] goods .. . from those manufactured or sold by others and to indicate the source of the goods , 15 U. S. C. § 1127. Registration of a mark under §2 of the Lanham Act, 15 XJ. S. C. § 1052, enables the owner to sue an infringer under §32, 15 U. S. C. §1114; it also entitles the owner to a presumption that its mark is valid, see § 7(b), 15 U. S. C. § 1057(b), and ordinarily renders the registered mark incontestable after five years of continuous use, see §15, 15 U. S. C. § 1065. In addition to protecting registered marks, the Lanham Act, in § 43(a), gives a producer a cause of action for the use by any person of “any word, term, name, symbol, or device, or any combination thereof... which ... is likely to cause confusion ... as to the origin, sponsorship, or approval of his or her goods ....” 15 U. S. C. § 1125(a). It is the latter provision that is at issue in this case.

The breadth of the definition of marks registrable under §2, and of the confusion-producing elements recited as actionable by § 43(a), has been held to embrace not just word marks, such as “Nike,” and symbol marks, such as Nike’s “swoosh” symbol, but also “trade dress” — a category that originally included only the packaging, or “dressing,” of a product, but in recent years has been expanded by many Courts of Appeals to encompass the design of a product. See, e. g., Ashley Furniture Industries, Inc. v. Sangiacomo N. A., Ltd., 187 F. 3d 363 (CA4 1999) (bedroom furniture); Knitwaves, Inc. v. Lollytogs, Ltd., 71 F. 3d 996 (CA2 1995) (sweaters); Stuart Hall Co., Inc. v. Ampad Corp., 51 F. 3d 780 (CA8 1995) (notebooks). These courts have assumed, often without discussion, that trade dress constitutes a “symbol” or “device” for purposes of the relevant sections, and we conclude likewise. “Since human beings might use as a ‘symbol’ or ‘device’ almost anything at all that is capable of carrying meaning, this language, read literally, is not restrictive.” Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 162 (1995). This reading of §2 and § 43(a) is buttressed by a recently added subsection of § 43(a), § 43(a)(3), which refers specifically to “civil action[s] for trade dress infringement under this chapter for trade dress not registered on the principal register.” 15 U. S. C. § 1125(a)(3) (1994 ed., Supp. V).

The text of § 43(a) provides little guidance as to the circumstances under which unregistered trade dress may be protected. It does require that a producer show that the allegedly infringing feature is not “functional,” see §43 (a)(3), and is likely to cause confusion with the product for which protection is sought, see § 43(a)(1)(A), 15 U. S. C. § 1125(a)(1)(A). Nothing in § 43(a) explicitly requires a producer to show that its trade dress is distinctive, but courts have universally imposed that requirement, since without distinctiveness the trade dress would not “cause confusion ... as to the origin, sponsorship, or approval of [the] goods,” as the section requires. Distinctiveness is, moreover, an explicit prerequisite for registration of trade dress under § 2, and “the general principles qualifying a mark for registration under §2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U. S. 763, 768 (1992) (citations omitted).

In evaluating the distinctiveness of a mark under § 2 (and therefore, by analogy, under § 43(a)), courts have held that a mark can be distinctive in one of two ways. First, a mark is inherently distinctive if “[its] intrinsic nature serves to identify a particular source.” Ibid. In the context of word marks, courts have applied the now-classic test originally formulated by Judge Friendly, in which word marks that are “arbitrary” (“Camel” cigarettes), “fanciful” (“Kodak” film), or “suggestive” (“Tide” laundry detergent) are held to be inherently distinctive. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 P. 2d 4, 10-11 (CA2 1976). Second, a mark has acquired distinctiveness, even if it is not inherently distinctive, if it has developed secondary meaning, which occurs when, “in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.” Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U. S. 844, 851, n. 11 (1982).

The judicial differentiation between marks that are inherently distinctive and those that have developed secondary meaning has solid foundation in the statute itself. Section 2 requires that registration be granted to any trademark “by which the goods of the applicant may be distinguished from the goods of others” — subject to various limited exceptions. 15 U. S. C. § 1052. It also provides, again with limited exceptions, that “nothing in this chapter shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods in commerce” — that is, which is not inherently distinctive but has become so only through secondary meaning. § 2(f), 15 U. S. C. § 1052(f). Nothing in § 2, however, demands the conclusion that every category of mark necessarily includes some marks “by which the goods of the applicant may be distinguished from the goods of others” without secondary meaning — that in every category some marks are inherently distinctive.

respect to at least one category of mark— colors — we have held that no mark can ever be inherently distinctive. See Qualitex, supra, at 162-163. In Qualitex, petitioner manufactured and sold green-gold dry-cleaning press pads. After respondent began selling pads of a similar color, petitioner brought suit under § 43(a), then added a claim under §32 after obtaining registration for the color of its pads. We held that a color could be protected as a trademark, but only upon a showing of secondary meaning. Reasoning by analogy to the Abercrombie & Fitch test developed for word marks, we noted that a product’s color is unlike a “fanciful,” “arbitrary,” or “suggestive” mark, since it does not “almost automatically tell a customer that [it] refer[s] to a brand,” 514 U. S., at 162-163, and does not “immediately . . . signal a brand or a product ‘source,’” id., at 163. However, we noted that, “over time, customers may come to treat a particular color on a product, or its packaging ... as signifying a brand.” Ibid. Because a color, like a “descriptive” word mark, could eventually “come to indicate a product’s origin,” we concluded that it could be protected upon a showing of secondary meaning. Ibid.

It seems to us that design, like color, is not inherently distinctive. The attribution of inherent distinctiveness to certain categories of word marks and product packaging derives from the fact that the very purpose of attaching a particular word to a product, or encasing it in a distinctive packaging, is most often to identify the source of the product. Although the words and packaging can serve subsidiary functions — a suggestive word mark (such as “Tide” for laundry detergent), for instance, may invoke positive connotations in the consumer’s mind, and a garish form of packaging (such as Tide’s squat, brightly decorated plastic bottles for its liquid laundry detergent) may attract an otherwise indifferent consumer’s attention on a crowded store shelf — their predominant function remains source identification. Consumers are therefore predisposed to regard those symbols as indication of the producer, which is why such symbols “almost automatically tell a customer that they refer to a brand,” id., at 162-163, and “immediately . .. signal a brand or a product ‘source,’ ” id., at 163. And where it is not reasonable to assume consumer predisposition to take an. affixed word or packaging as indication of source — where, for example, the affixed word is descriptive of the product (“Tasty” bread) or of a geographic origin (“Georgia” peaches) — inherent distinctiveness will not be found. That is why the statute generally excludes, from those word marks that can be registered as inherently distinctive, words that are “merely descriptive” of the goods, § 2(e)(1), 15 U. S. C. § 1052(e)(1), or “primarily geographically descriptive of them,” see § 2(e)(2), 15 U. S. C. § 1052(e)(2). In the case of product design, as in the case of color, we think consumer predisposition to-equate the feature with the source does not exist. Consumers are aware of the reality that, almost invariably, even the most unusual of product designs — such as a cocktail shaker shaped like a penguin — is intended not to identify the source, but to render the product itself more useful or more appealing.

The fact that product design almost invariably serves purposes other than source identification not only renders inherent distinctiveness problematic; it also renders application of an inherent-distinctiveness principle more harmM to other consumer interests. Consumers should not be deprived of the benefits of competition with regard to the utilitarian and esthetic purposes that product design ordinarily serves by a rule of law that facilitates plausible threats of suit against new entrants based upon alleged inherent distinctiveness. How easy it is to mount a plausible suit depends, of course, upon the clarity of the test for inherent distinctiveness, and where product design is concerned we have little confidence that a reasonably clear test can be devised. Respondent and the United States as amicus curiae urge us to adopt for product design relevant portions of the test formulated by the Court of Customs and Patent Appeals for product packaging in Seabrook Foods, Inc. v. Bar-Well Foods, Ltd., 568 F. 2d 1342 (1977). That opinion, in determining the inherent distinctiveness of a product’s packaging, considered, among other things, “whether it was a ‘common’ basic shape or design, whether it was unique or unusual in a particular field, [and] whether it was a mere refinement of a commonly-adopted and well-known form of ornamentation for a particular class of goods viewed by the public as a dress or ornamentation for the goods.” Id., at 1344 (footnotes omitted). Such a test would rarely provide the basis for summary disposition of an anticompetitive strike suit. Indeed, at oral argument, counsel for the United States quite understandably would not give a definitive answer as to whether the test was met in this very case, saying only that “tt]his is a very difficult case for that purpose.” Tr. of Oral Arg. 19.

It is true, of course, that the person seeking to exclude new entrants would have to establish the nonfunctionality of the design feature, see § 43(a)(3), 15 U. S. C. § 1125(a)(3) (1994 ed., Supp. V) — a showing that may involve consideration of its esthetic appeal, see Qualitex, supra, at 170. Competition is deterred, however, not merely by successful suit but by the plausible threat of successful suit, and given the unlikelihood of inherently source-identifying design, the game of allowing suit based upon alleged inherent distinctiveness seems to us not worth the candle. That is especially so since the producer can ordinarily obtain protection for a design that is inherently source identifying (if any such exists), but that does not yet have secondary meaning, by securing a design patent or a copyright for the design — as, indeed, respondent did for certain elements of the designs in this case. The availability of these other protections greatly reduces any harm to the producer that might ensue from our conclusion that a product design cannot be protected under § 43(a) without a showing of secondary meaning.

Respondent contends that our decision in Two Pesos forecloses a conclusion that product-design trade dress can never be inherently distinctive. In that case, we held that the trade dress of a chain of Mexican restaurants, which the plaintiff described as “a festive eating atmosphere having interior dining and patio areas decorated with artifacts, bright colors, paintings and murals,” 505 U. S., at 765 (internal quotation marks and citation omitted), could be protected under § 43(a) without a showing of secondary meaning, see id., at 776. Two Pesos unquestionably establishes the legal principle that trade dress can be inherently distinctive, see, e. g., id., at 773, but it does not establish that 'product-design trade dress can be. Two Pesos is inapposite to our holding here because the trade dress at issue, the decor of a restaurant, seems to us not to constitute product design. It was either product packaging — which, as we have discussed, normally is taken by the consumer to indicate origin — or else some tertium quid that is akin to product packaging and has no bearing on the present case.

Respondent replies that this manner of distinguishing Two Pesos will force courts to draw difficult lines between product-design and product-packaging trade dress. There will .indeed be some hard cases at the margin: a classic glass Coca-Cola bottle, for instance, may constitute packaging for those consumers who drink the Coke and then discard the bottle, but may constitute the product itself for those consumers who are bottle collectors, or part of the product itself for those consumers who buy Coke in the classic glass bottle, rather than a can, because they think it more stylish to drink from the former. We believe, however, that the frequency and the difficulty of having to distinguish between product design and product packaging will be much less than the frequency and the difficulty of having to decide when a product design is inherently distinctive. To the extent there are close cases, we believe that courts should err on the side of caution and classify ambiguous trade dress as product design, thereby requiring secondary meaning. The very closeness will suggest the existence of relatively small utility in adopting an inherent-distinctiveness principle, and relatively great consumer benefit in requiring a demonstration of secondary meaning.

* * *

We hold that, in an action for infringement of unregistered trade dress under § 43(a) of the Lanham Act, a product’s design is distinctive, and therefore protective, only upon a showing of secondary meaning. The judgment of the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       The phrase “secondary meaning” originally arose in the context of word marks, where it served to distinguish the source-identifying meaning from the ordinary, or “primary,” meaning of the word. “Secondary meaning” has since come to refer to the acquired, source-identifying meaning of a nonword mark as well. It is often a misnomer in that context, since nonword marks ordinarily have no “primary” meaning. Clarity might well be served by using the term “acquired meaning” in both the word-mark and the nonword-mark contexts — but in this opinion we follow what has become the conventional terminology.


author: Justice Kennedy Justice Souter,

text:
    BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN SYSTEM v. SOUTHWORTH et al.
    No. 98-1189.
    Argued November 9, 1999
    Decided March 22, 2000

      Kennedy, J., delivered the opinion of the Court, in which Rehnqtjist, C. J., and O’Connor, Scalia, Thomas, and Ginsbtjrg, JJ., joined. Sou-ter, J., filed an opinion concurring in the judgment, in which Stevens and Breyer, JJ., joined, post, p. 236.

      Susan K. Ullman, Assistant Attorney General of Wisconsin, argued the cause for petitioner. With her on the briefs were James E. Doyle, Attorney General, and Peter C. Anderson, Assistant Attorney General.

      Jordan W. Lorence argued the cause for respondents. With him on the brief was Daniel Kelly

      Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, Peter H. Schijf, Deputy Solicitor General, Laura Etlinger, Assistant Attorney General, and Mark B. Rotenberg, and by the Attorneys General for their respective States as follows: Mark Pryor of Arkansas, Ken Salazar of Colorado, Thurbert E. Baker of Georgia, Thomas R. Keller of Hawaii, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Joseph P. Mazurek of Montana, Michael F. Easley of North Carolina, Betty D. Montgomery of Ohio, and Paul G. Summers of Tennessee; for the State of Oregon by Hardy

        Myers, Attorney General, David Schuman, Deputy Attorney General, and Michael D. Reynolds, Solicitor General; for the American Civil Liberties Union et al. by Jon G. Furlow, Steven R. Shapiro, Elliot M. Mincberg, and Judith E. Schaeffer; for the American Council on Education et al. by Stephen S. Dunham, Leonard M. Niehoff, and Sheldon E. Steinback; for the American Federation of Labor and Congress of Industrial Organizations by Jonathan P. Hiatt, James B. Coppess, and Laurence Gold; for the Brennan Center for Justice at New York University School of Law by Scott D. Makar, Robert Bergen, Michael J. Frevola, and Burt Neuborne; for the Lesbian, Gay, Bisexual, and Transgender Campus Center at UW-Madison et al. by Patricia M. Logue and Ruth E. Harlow; for the National Legal Aid Defenders Association, Student Legal Services Section, by Ned R. Jaeckle and Kathleen A Cushing; for the National Education Association by Robert H. Chanin, Andrew D. Roth, and Michael D. Simpson; for the New York Public Interest Research Group by Alexander R. Sussman; for the Student Press Law Center et al. by Lucy A Dalglish; for Student Rights Law Center, Inc., by Mitchel D. Grotch; for the United States Student Association et al. by David C. Vladeck and Alan B. Morrison; for United Council of University of Wisconsin Students, Inc., by Mark B. Ha-zelbaker; for the University of California Student Association by Michael S. Sorgen and Amy R. Levine; and for the Wisconsin Student Public Interest Research Group et al. by Daniel H. Squire, Craig Goldblatt, and Francisco Medina.

      Briefs of amici curiae urging affirmance were filed for the Atlantic Legal Foundation by Martin S. Kaufman and Edwin L. Lewis III; for the American Center for Law and Justice by Jay Alan Sekulow, Mark Nathan Troobnick, and James Matthew Henderson, Sr.; for the Christian Legal Society by Steven T. McFarland, Samuel B. Casey, and Thomas C. Berg; for the Family Research Institute by Roy H. Nelson; for Liberty Counsel by Mathew D. Staver; for the National Legal Foundation by Barry C. Hodge; for the National Right to Work Legal Defense Foundation, Inc., by Raymond J. LaJeunesse, Jr.; for the National Smokers Alliance by Renee Giachino; for the Pacific Legal Foundation et al. by Deborah J. La Fetra; and for the Washington Legal Foundation et al. by Daniel E. Troy, Daniel J. Popeo, and Paul D. Kamenar.

      Briefs of amici curiae were filed for Americans United for Separation of Church and State et al. by Steven K. Green, Steven M. Freeman, and Ayesha N. Khan; for First Freedoms Foundation by Michael D. Dean; for the Rutherford Institute by John W. Whitehead and Steven H. Aden; and for Owen Brennan Rounds et al. by Thomas H. Nelson.

   Justice Kennedy

delivered the opinion of the Court.

For the second time in recent years we consider constitutional questions arising from a program designed to facilitate extracurricular student speech at a public university. Respondents are a group of students at the University of Wisconsin (hereinafter University). They brought a First Amendment challenge to a mandatory student activity fee imposed by petitioner Board of Regents of the University of Wisconsin System and used in part by the University to support student organizations engaging in political or ideological speech. Respondents object to the speech and expression of some of the student organizations. Relying upon our precedents which protect members of unions and bar associations from being required to pay fees used for speech the members find objectionable, both the District Court and the Court of Appeals invalidated the University’s student fee program. The University contends that its mandatory student activity fee and the speech which it supports are appropriate to further its educational mission.

We reverse. The First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral. We do not sustain, however, the student referendum mechanism of the University’s program, which appears to permit the exaction of fees in violation of the viewpoint neutrality principle. As to that aspect of the program, we remand for further proceedings.

I

of Wisconsin is a public corporation of the State of Wisconsin. See Wis. Stat. §36.07(1) (1993-1994). State law defines the University's mission in broad terms: “to develop human resources, to discover and disseminate knowledge, to extend knowledge and its application beyond the boundaries of its campuses and to serve and stimulate society by developing in students heightened intellectual, cultural and humane sensitivities ... and a sense of purpose.” § 36.01(2). Some 30,000 undergraduate students and 10,000 graduate and professional students attend the University’s Madison campus, ranking it among the Nation’s largest institutions of higher learning. Students come to the renowned University from all 50 States and from 72 foreign countries. Last year marked its 150th anniversary; and to celebrate its distinguished history, the University sponsored a series of research initiatives, campus forums and workshops, historical exhibits, and public lectures, all reaffirming its commitment to explore the universe of knowledge and ideas.

The responsibility for governing the University of Wisconsin System is vested by law with the board of regents. § 36.09(1). The same law empowers the students to share in aspects of the University’s governance. One of those functions is to administer the student activities fee program. By statute the “[s]tudents in consultation with the chancellor and subject to the final confirmation of the board [of regents] shall have the responsibility for the disposition of those student fees which constitute substantial support for campus student activities.” §36.09(5). The students do so, in large measure, through their student government, called the Associated Students of Madison (ASM), and various ASM subcommittees. The program the University maintains to support the extracurricular activities undertaken by many of its student organizations is the subject of the present controversy.

It seems that since its founding the University has required full-time students enrolled at its Madison campus to pay a nonrefundable activity fee. App. 154. For the 1995— 1996 academic year, when this suit was commenced, the activity fee amounted to $331.50 per year. The fee is segregated from the University’s tuition charge. Once collected, the activity fees are deposited by the University into the accounts of the State of Wisconsin. Id., at 9. The fees are drawn upon by the University to support various campus services and extracurricular student activities. In the University’s view, the activity fees “enhance the educational experience” of its students by “promoting] extracurricular activities,” “stimulating advocacy and debate on diverse points of view,” enabling “participation] in political activity,” “promoting] student participation] in campus administrative activity,” and providing “opportunities to develop social skills,” all consistent with the University’s mission. Id., at 154-155.

The board of regents classifies the segregated fee into allo-cable and nonallocable portions. The nonallocable portion approximates 80% of the total fee and covers expenses such as student health services, intramural sports, debt service, and the upkeep and operations of the student union facilities. Id., at 13. Respondents did not challenge the purposes to which the University commits the nonallocable portion of the segregated fee. Id., at 37.

The allocable portion of the fee supports extracurricular endeavors pursued by the University’s registered student organizations or RSO’s. To qualify for RSO status students must organize as a not-for-profit group, limit membership primarily to students, and agree to undertake activities related to student life on campus. Id., at 15. During the 1995-1996 school year, 628 groups had RSO status on the Madison campus. Id., at 255. To name but a few, RSO’s included the Future Financial Gurus of America; the International Socialist Organization; the College Democrats; the College Republicans; and the American Civil Liberties Union Campus Chapter. As one would expect, the expressive activities undertaken by RSO’s are diverse in range and content, from displaying posters and circulating newsletters throughout the campus, to hosting campus debates and guest speakers, and to what can best be described as political lobbying.

RSO’s may obtain a portion of the allocable fees in one of three ways. Most do so by seeking funding from the Student Government Activity Fund (SGAF), administered by the ASM. SGAF moneys may be issued to support an RSO’s operations and events, as well as travel expenses “central to the purpose of the organization.” Id., at 18. As an alternative, an RSO can apply for funding from the General Student Services Fund (GSSF), administered through the ASM’s finance committee. During the 1995-1996 academic year, 15 RSO’s received GSSF funding. These RSO’s included a campus tutoring center, the student radio station, a student environmental group, a gay and bisexual student center, a community legal office, an AIDS support network, a campus women’s center, and the Wisconsin Student Public Interest Research Group (WISPIRG). Id., at 16-17. The University acknowledges that, in addition to providing campus services (e. g., tutoring and counseling), the GSSF-funded RSO’s engage in political and ideological expression. Brief for Petitioner 10.

The GSSF, as well as the SGAF, consists of moneys originating in the allocable portion of the mandatory fee. The parties have stipulated that, with respect to SGAF and GSSF funding, “[t]he process for reviewing and approving allocations for funding is administered in a viewpoint-neutral fashion,” id., at 14-15, and that the University does not use the fee program for “advocating a particular point of view.” Id., at 39.

A student referendum provides a third means for an RSO to obtain funding. Id., at 16. While the record is sparse on this feature of the University’s program, the parties inform us that the student body can vote either to approve or to disapprove an assessment for a particular RSO. One referendum resulted in an allocation of $45,000 to WISPIRG during the 1995-1996 academic year. At oral argument, counsel for the University acknowledged that a referendum could also operate to defund an RSO or to veto a funding decision of the ASM. In October 1996, for example, the student body voted to terminate funding to a national student organization to which the University belonged. Id., at 215. Both parties confirmed at oral argument that their stipulation regarding the program’s viewpoint neutrality does not extend to the referendum process. Tr. of Oral Arg. 19, 29.

With respect to GSSF and SGAF funding, the ASM or its finance committee makes initial funding decisions. App. 14-15. The ASM does so in an open session, and interested students may attend meetings when RSO funding is discussed. Id., at 14. It also appears that the ASM must approve the results of a student referendum. Approval appears pro forma, however, as counsel for the University advised us that the student government “voluntarily views th[e] referendum as binding.” Tr. of Oral Arg. 15. Once the ASM approves an RSO’s funding application, it forwards its decision to the chancellor and to the board of regents for their review and approval. App. 18, 19. Approximately 30% of the University’s RSO’s received funding during the 1995-1996 academic year.

RSO’s, as a general rule, do not receive lump-sum cash distributions. Rather, RSO’s obtain funding support on a reimbursement basis by submitting receipts or invoices to the University. Guidelines identify expenses appropriate for reimbursement. Permitted expenditures include, in the main, costs for printing, postage, office supplies, and use of University facilities and equipment. Materials printed with student fees must contain a disclaimer that the views expressed are not those of the ASM. The University also reimburses RSO’s for fees arising from membership in “other related and non-profit organizations.” Id., at 251.

The University’s policy establishes purposes for which fees may not be expended. RSO’s may not receive reimbursement for “[g]ifts, donations, and contributions,” the costs of legal services, or for “[activities which are politically partisan or religious in nature.” Id., at 251-252. (The policy does not give examples of the prohibited expenditures.) A separate policy statement on GSSF funding states that an RSO can receive funding if it “does not have a primarily political orientation (i. e. is not a registered political group).” Id., at 238. The same policy adds that an RSO “shall not use [student fees] for any lobbying purposes.” Ibid. At one point in their brief respondents suggest that the prohibition against expenditures for “politically partisan” purposes renders the program not viewpoint neutral. Brief for Respondents 31. In view of the fact that both parties entered a stipulation to the contrary at the outset of this litigation, which was again reiterated during oral argument in this Court, we do not consider respondents’ challenge to this aspect of the University’s program.

The University’s Student Organization Handbook has guidelines for regulating the conduct and activities of RSO’s. In addition to obligating RSO’s to adhere to the fee program’s rules and regulations, the guidelines establish procedures authorizing any student to complain to the University that an RSO is in noncompliance. An extensive investigative process is in place to evaluate and remedy violations. The University’s policy includes a range of sanctions for noncompliance, including probation, suspension, or termination of RSO status.

One RSO that appears to operate in a manner distinct from others is WISPIRG. For reasons not clear from the record, WISPIRG receives lump-sum cash distributions from the University. University counsel informed us that this distribution reduced the GSSF portion of the fee pool. Tr. of Oral Arg. 15. The full extent of the uses to which WISPIRG puts its funds is unclear. We do know, however, that WISPIRG sponsored on-campus events regarding homelessness and environmental and consumer protection issues. App. 348. It coordinated community food drives and educational programs and spent a portion of its activity fees for the lobbying efforts of its parent organization and for student internships aimed at influencing legislation. Id., at 344, 347.

In March 1996, respondents, each of whom attended or still attend the University’s Madison campus, filed suit in the United States District Court for the Western District of Wisconsin against members of the board of regents. Respondents alleged, inter alia, that imposition of the segregated fee violated their rights of free speech, free association, and free exercise under the First Amendment. They contended the University must grant them the choice not to fund those RSO’s that engage in political and ideological expression offensive to their personal beliefs. Respondents requested both injunctive and declaratory relief. On cross-motions for summary judgment, the District Court ruled in their favor, declaring the University’s segregated fee program invalid under Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), and Keller v. State Bar of Cal., 496 U. S. 1 (1990). The District Court decided the fee program compelled students “to support political and ideological activity with which they disagree” in violation of respondents’ First Amendment rights to freedom of speech and association. App. to Pet. for Cert. 98a. The court did not reach respondents’ free exercise claim. The District Court’s order enjoined the board of regents from using segregated fees to fund any RSO engaging in political or ideological speech.

The United States Court of Appeals for the Seventh Circuit affirmed in part, reversed in part, and vacated in part. Southworth v. Grebe, 151 F. 3d 717 (1998). As the District Court had done, the Court of Appeals found our compelled speech precedents controlling. After examining the University’s fee program under the three-part test outlined in Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991), it concluded that the program was not germane to the University’s mission, did not further a vital policy of the University, and imposed too much of a burden on respondents’ free speech rights. “[Ljike the objecting union members in Abood,” the Court of Appeals reasoned, the students here have a First Amendment interest in not being compelled to contribute to an organization whose expressive activities conflict with their own personal beliefs. 151F. 3d, at 731. It added that protecting the objecting students’ free speech rights was “of heightened concern” following our decision in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), because “[i]f the university cannot discriminate in the disbursement of funds, it is imperative that students not be compelled to fund organizations which engage in political and ideological activities — that is the only way to protect the individual’s rights.” 151 F. 3d, at 730, n. 11. The Court of Appeals extended the District Court’s order and enjoined the board of regents from requiring objecting students to pay that portion of the fee used to fund RSO’s engaged in political or ideological expression. Id., at.735.

Three members of the Court of Appeals dissented from the denial of the University’s motion for rehearing en banc. In -their view, the panel opinion overlooked the “crucial difference between a requirement to pay money to an organization that explicitly aims to subsidize one viewpoint to the exclusion of other viewpoints, as in Abood and Keller, and a requirement to pay a fee to a group that creates a viewpoint-neutral forum, as is true of the student activity fee here.” Southworth v. Grebe, 157 F. 3d 1124, 1129 (CA7 1998) (D. Wood, J., dissenting).

Other courts addressing First Amendment challenges to similar student fee programs have reached conflicting results. Compare Rounds v. Oregon State Bd. of Higher Ed., 166 F. 3d 1032, 1038-1040 (CA9 1999); Hays County Guardian v. Supple, 969 F. 2d 111, 123 (CA5 1992), cert. denied, 506 U. S. 1087 (1993); Kania v. Fordham, 702 F. 2d 475, 480 (CA4 1983); Good v. Associated Students of Univ. of Wash., 86 Wash. 2d 94, 105, 542 P. 2d 762, 769 (1975) (en banc), with Smith v. Regents of Univ. of Cal., 4 Cal. 4th 843, 862-863, 844 P. 2d 500, 513-514, cert. denied, 510 U. S. 863 (1993). These conflicts, together with the importance of the issue presented, led us to grant certiorari. 526 U. S. 1038 (1999). We reverse the judgment of the Court of Appeals.

HH I — i

It is inevitable that government will adopt and pursue programs and policies within its constitutional powers but which nevertheless are contrary to the profound beliefs and sincere convictions of some of its citizens. The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies. See, e. g., Rust v. Sullivan, 500 U. S. 173 (1991); Regan v. Taxation With Representation of Wash., 461 U. S. 540, 548-549 (1983). The case we decide here, however, does not raise the issue of the government’s right, or, to be more specific, the state-controlled University’s right, to use its own funds to advance a particular message. The University’s whole justification for fostering the challenged expression is that it springs from the initiative of the students, who alone give it purpose and content in the course of their extracurricular endeavors.

The University having disclaimed that the speech is its own, we do not reach the question whether traditional political controls to ensure responsible government action would be sufficient to overcome First Amendment objections and to allow the challenged program under the principle that the government can speak for itself. If the challenged speech here were financed by tuition dollars and the University and its officials were responsible for its content, the case might be evaluated on the premise that the government itself is the speaker. That is not the case before us.

The University of Wisconsin exacts the fee at issue for the sole purpose of facilitating the free and open exchange of ideas by, and among, its students. We conclude the objecting students may insist upon certain safeguards with respect to the expressive activities which they are required to support. Our public forum cases are instructive here by close analogy. This is true even though the student activities fund is not a public forum in the traditional sense of the term and despite the circumstance that those cases most often involve a demand for access, not a claim to be exempt from supporting speech. See, e. g., Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); Widmar v. Vincent, 454 U. S. 263 (1981). The standard of viewpoint neutrality found in the public forum cases provides the standard we find controlling. We decide that the viewpoint neutrality requirement of the University program is in general sufficient to protect the rights of the objecting students. The student referendum aspect of the program for funding speech and expressive activities, however, appears to be inconsistent with the viewpoint neutrality requirement.

We must begin by recognizing that the complaining students are being required to pay fees which are subsidies for speech they find objectionable, even offensive. The Abood and Keller cases, then, provide the beginning point for our analysis. Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977); Keller v. State Bar of Cal., 496 U. S. 1 (1990). While those precedents identify the interests of the protesting students, the means of implementing First Amendment protections adopted in those decisions are neither applicable nor workable in the context of extracurricular student speech at a university.

In Abood, some nonunion public school teachers challenged an agreement requiring them, as a condition of their employment, to pay a service fee equal in amount to union dues. 431 U. S., at 211-212. The objecting teachers alleged that the union’s use of their fees to engage in political speech violated their freedom of association guaranteed by the First and Fourteenth Amendments. Id., at 213. The Court agreed and held that any objecting teacher could “prevent the Union’s spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as exclusive bargaining representative.” Id., at 234. The principles outlined in Abood provided the foundation for our later decision in Keller. There we held that lawyers admitted to practice in California could be required to join a state bar association and to fund activities “germane” to the association’s mission of “regulating the legal profession and improving the quality of legal services.” 496 U. S., at 13-14. The lawyers could not, however, be required to fund the bar association’s own political expression. Id., at 16.

The proposition that students who attend the University cannot be required to pay subsidies for the speech of other students without some First Amendment protection follows from the Abood and Keller cases. Students enroll in public universities to seek fulfillment of their personal aspirations and of their own potential. If the University conditions the opportunity to receive a college education, an opportunity comparable in importance to joining a labor union or bar association, on an agreement to support objectionable, extracurricular expression by other students, the rights acknowledged in Abood and Keller become implicated. It infringes on the speech and beliefs of the individual to be required, by this mandatory student activity fee program, to pay subsidies for the objectionable speech of others without any recognition of the State’s corresponding duty to him or her. Yet recognition must be given as well to the important and substantial purposes of the University, which seeks to facilitate a wide range of speech.

In Abood and Keller, the constitutional rule took the form of limiting the required subsidy to speech germane to the. purposes of the union or bar association. The standard of germane speech as applied to student speech at a university is unworkable, however, and gives insufficient protection both to the objecting students and to the University program itself. Even in the context of a labor union, whose functions are, or so we might have thought, well known and understood by the law and the courts after a long history of gov-eminent regulation and judicial involvement, we have encountered difficulties in deciding what is germane and what is not. The difficulty manifested itself in our decision in Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991), where different Members of the Court reached varying conclusions regarding what expressive activity was or was not germane to the mission of the association. If it is difficult to define germane speech with ease or precision where a union or bar association is the party, the standard becomes all the more unmanageable in the public university setting, particularly where the State undertakes to stimulate the whole universe of speech and ideas.

The speech the University seeks to encourage in the program before us is distinguished not by discernable limits but by its vast, unexplored bounds. To insist upon asking what speech is germane would be contrary to the very goal the University seeks to pursue. It is not for the Court to say what is or is not germane to the ideas to be pursued in an institution of higher learning.

Just as the vast extent of permitted expression makes the test of germane speech inappropriate for intervention, so too does it underscore the high potential for intrusion on the First Amendment rights of the objecting students. It is all but inevitable that the fees will result in subsidies to speech which some students find objectionable and offensive to their personal beliefs. If the standard of germane speech is inapplicable, then, it might be argued the remedy is to allow each student to list those causes which he or she will or will not support. If a university decided that its students’ First Amendment interests were better protected by some type of optional or refund system it would be free to do so. We decline to impose a system of that sort as a constitutional requirement, however. The restriction could be so disruptive and expensive that the program to support extracurricular speech would be ineffective. The First Amendment does not require the University to put the program at risk.

The University may determine that its mission is well served if students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life outside the lecture hall. If the University reaches this conclusion, it is entitled to impose a mandatory fee to sustain an open dialogue to these ends.

The University must provide some protection to its students’ First Amendment interests, however. The proper measure, and the principal standard of protection for objecting students, we conclude, is the requirement of viewpoint neutrality in the allocation of funding support. Viewpoint neutrality was the obligation to which we gave substance in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). There the University of Virginia feared that any association with a student newspaper advancing religious viewpoints would violate the Establishment Clause. We rejected the argument, holding that the school’s adherence to a rule of viewpoint neutrality in administering its student fee program would prevent “any mistaken impression that the student newspapers speak for the University.” Id., at 841. While Rosenberger was concerned with the rights a student has to use an extracurricular speech program already in place, today’s case considers the antecedent question, acknowledged but unresolved in Rosenberger: whether a public university may require its students to pay a fee which creates the mechanism for the extracurricular speech in the first instance. When a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others. There is symmetry then in our holding here and in Rosenberger: Viewpoint neutrality is the justification for requiring the student to pay the fee in the first instance and for ensuring the integrity of the program’s operation once the funds have been collected. We conclude that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using mandatory student fees with viewpoint neutrality as the operational principle.

The parties have stipulated that the program the University has developed to stimulate extracurricular student expression respects the principle of viewpoint neutrality. If the stipulation is to continue to control the case, the University’s program in its basic structure must be found consistent with the First Amendment.

We make no distinction between campus activities and the off-campus expressive activities of objectionable RSO’s. Those activities, respondents tell us, often bear no relationship to' the University’s reason for imposing the segregated fee in the first instaneé, to foster vibrant campus debate among students. If the University shares those concerns, it is free to enact viewpoint neutral rules restricting off-campus travel or other expenditures by RSO’s, for it may create what is tantamount to a limited public forum if the principles of viewpoint neutrality are respected. Cf. id., at 829-830. We find no principled way, however, to impose upon the University, as a constitutional matter, a requirement to adopt geographic or spatial restrictions as a condition for RSOs’ entitlement to reimbursement. Universities possess significant interests in encouraging students to take advantage of the social, civic, cultural, and religious opportunities available in surrounding communities and throughout the country. Universities, like all of society, are finding that traditional conceptions of territorial boundaries are difficult to insist upon in an age marked by revolutionary changes in communications, information transfer, and the means of discourse. If the rule of viewpoint neutrality is respected, our holding affords the University latitude to adjust its extracurricular student speech program to accommodate these advances and opportunities.

Our decision ought not to be taken to imply that in other instances the University, its agents or employees, or — of particular importance — its faculty, are subject to the First Amendment analysis which controls in this case. Where the University speaks, either in its own name through its regents or officers, or in myriad other ways through its diverse faculties, the analysis likely would be altogether different. See Rust v. Sullivan, 500 U. S. 173 (1991); Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983). The Court has not held, or suggested, that when the government speaks the rules we have discussed come into play.

When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position. In the instant case, the speech is not that of the University or its agents. It is not, furthermore, speech by an instructor or a professor in the academic context, where principles applicable to government speech would have to be considered. Cf. Rosenberger, supra, at 833 (discussing the discretion universities possess in deciding matters relating to their educational mission).

III

It remains to discuss the referendum aspect of the University’s program. While the record is not well developed on the point, it appears that by majority vote of the student body a given RSO may be funded or defunded. It is unclear to us what protection, if any, there is for viewpoint neutrality in this part of the process. To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here. A remand is necessary and appropriate to resolve this point; and the case in all events must be reexamined in light of the principles we have discussed.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. In this Court, the parties shall bear their own costs.

It is so ordered.

Justice Souter,

with whom Justice Stevens and Justice Breyer join, concurring in the judgment.

The majority today validates the University’s student activity fee after recognizing a new category of First Amendment interests and a new standard of viewpoint neutrality protection. I agree that the University’s scheme is permissible, but do not believe that the Court should take the occasion to impose a east-iron viewpoint neutrality requirement to uphold it. See ante, at 233-234. Instead, I would hold that the First Amendment interest claimed by the student respondents (hereinafter Southworth) here is simply insufficient to merit protection by anything more than the viewpoint neutrality already accorded by the University, and I would go no further.

The parties have stipulated that the grant scheme is administered on a viewpoint neutral basis, and like the majority I take the case on that assumption. The question before us is thus properly cast not as whether viewpoint neutrality is required, but whether Southworth has a claim to relief from this specific viewpoint neutral scheme. Two sources of law might be considered in answering this question.

The first comprises First Amendment and related cases grouped under the umbrella of academic freedom. Such law might be implicated by the University’s proffered rationale, that the grant scheme funded by the student activity fee is an integral element in the discharge of its educational mission. App. 253 (excerpt from Dean of Students Office Student Organization Handbook noting that the activities of student groups constitute a “‘second curriculum’”); id., at 41, 42-44 (statement of Associate Dean of Students of the UW-Madison noting academic importance of funding scheme); see also ante, at 233. Our understanding of academic freedom has included not merely liberty from restraints on thought, expression, and association in the academy, but also the idea that universities and schools should have the freedom to make decisions about how and what to teach. In Regents of Univ. of Mich. v. Ewing, 474 U. S. 214 (1985), we recognized these related conceptions: “Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself.” Id., at 226, n. 12 (citations omitted). Some of the opinions in our books emphasize broad conceptions of academic freedom that if accepted by the Court might seem to clothe the University with an immunity to any challenge to regulations made or obligations imposed in the discharge of its educational mission. So, in Sweezy v. New Hampshire, 354 U. S. 234 (1957), Justice Frankfurter, concurring in the result and joined by Justice Harlan, explained the importance of a university’s ability to define its own mission by quoting from a statement on the open universities in South Africa:

“ ‘It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail “the four essential freedoms” of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’” Id., at 263 (citations omitted).

These broad statements on academic freedom do not dispose of the case here, however. Ewing addressed not the relationship between academic freedom and First Amendment burdens imposed by a university, but a due process challenge to a university’s academic decisions, while as to them the case stopped short of recognizing absolute autonomy. Ewing, supra, at 226, and n. 12. And Justice Frankfurter’s discussion in Sweezy, though not rejected, was not adopted by the full Court, Sweezy, supra, at 263 (opinion concurring in result). Our other cases on academic freedom thus far have dealt with more limited subjects, and do not compel the conclusion that the objecting university student is without a First Amendment claim here. While we have spoken in terms of a wide protection for the academic freedom and autonomy that bars legislatures (and courts) from imposing conditions on the spectrum of subjects taught and viewpoints expressed in college teaching (as the majority recognizes, ante, at 232), we have never held that universities lie entirely beyond the reach of students’ First Amendment rights. Thus our prior cases do not go so far as to control the result in this one, and going beyond those cases would be out of order, simply because the University has not litigated on grounds of academic freedom. As to that freedom and university autonomy, then, it is enough to say that protecting a university’s discretion to shape its educational mission may prove to be an important consideration in First Amendment analysis of objections to student fees. Sweezy, supra, at 262-264 (Frankfurter, J., concurring in result); Ewing, supra, at 226, n. 12.

The second avenue for addressing Southworth’s claim to a pro rata refund or the total abolition of the student activity fee is to see how closely the circumstances here resemble instances of governmental speech mandates found to require relief. As a threshold matter, it is plain that this case falls far afield of those involving compelled or controlled speeeh, apart from subsidy schemes. Indirectly transmitting a fraction of a student activity fee to an organization with an offensive message is in no sense equivalent to restricting or modifying the message a student wishes to express. Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572-574 (1995). Nor does it require an individual to bear an offensive statement personally, as in Wooley v. Maynard, 430 U. S. 705, 707 (1977), let alone to affirm a moral or political commitment, as in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 626-629 (1943). In each of these cases, the government was imposing far more directly and offensively on an objecting individual than collecting the fee that indirectly funds the jumble of other speakers’ messages in this case.

Next, I agree with the majority that the Abood and Keller line of cases does not control the remedy here, the situation of the students being significantly different from that of union or bar association members. Ante, at 230; see Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977); Keller v. State Bar of Cal., 496 U. S. 1 (1990). First, the relationship between the fee payer and the ultimately objectionable expression is far more attenuated. In the union and bar association cases, an individual was required to join or at least drop money in the coffers of the very organization promoting messages subject to objection. Abood, supra, at 211-213, 215; Keller, supra, at 13-14. The connection between the forced contributor and the ultimate message was as direct as the unmediated contribution to the organization doing the speaking. The student contributor, however, has to fund only a distributing agency having itself no social, political, or ideological character and itself engaging (as all parties agree) in no expression of any distinct message. App. 14-15, 34, 39, 41. Indeed, the disbursements, varying from year to year, are as likely as not to fund an organization that disputes the very message an individual student finds exceptionable. Id., at 39. Thus, the clear connection between fee payer and offensive speech that loomed large in our decisions in the union and bar cases is simply not evident here.

Second, South worth’s objection has less force than it might otherwise carry because the challenged fees support a gov-eminent program that aims to broaden public discourse. As I noted in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 873-874, and n. 3, 889-891 (1995) (dissenting opinion), the university fee at issue is a tax. The state university compels it; it is paid into state accounts; and it is disbursed under the ultimate authority of the State. Wis. Stat. §36.09(5) (1993-1994); App. 9, 18-19. Although the facts here may not fit neatly under our holdings on government speech (and the University has expressly renounced any such claim), ante, at 229, our cases do suggest that under the First Amendment the government may properly use its tax revenue to promote general discourse. In Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), we rejected a challenge to a congressional program providing viewpoint neutral subsidies to all Presidential candidates based in part on this reasoning:

“[The program] is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people. Thus, [the program] furthers, not abridges, pertinent First Amendment values.” Id., at 92-93 (footnotes omitted).

And we have recognized the same principle outside of the sphere of government spending as well. In PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), we rejected a shopping mall owner’s blanket claim that "a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.” Id., at 85 (footnote omitted). We then upheld the right of individuals to exercise state-protected rights of expression on a shopping mall owner’s property, noting among other things that there was no danger that such a requirement would “ *dampe[n] the vigor and limi[t] the variety of public debate.’ ” Id., at 87, 88 (quoting Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 257 (1974) (alteration in original)). The same consideration goes against the fee payer’s speech objection to the scheme here.

Third, our prior compelled speech and compelled funding cases are distinguishable on the basis of the legitimacy of governmental interest. No one disputes the University’s assertion that some educational value is derived from the activities supported by the fee, ante, at 232-233; supra, at 237, whereas there was no governmental interest in mandating union or bar association support beyond supporting the collective bargaining and professional regulatory functions of those organizations, see Abood, supra, at 223-224; Keller, supra, at 13-14. Nor was there any legitimate governmental interest in requiring the publication or affirmation of propositions with which the bearer or speaker did not agree. Wooley, 430 U. S., at 716-717; Barnette, 319 U. S., at 640-642.

Finally, the weakness of Southworth’s claim is underscored by its setting within a university, whose students are inevitably required to support the expression of personally offensive viewpoints in ways that cannot he thought constitutionally objectionable unless one is prepared to deny the University its choice over what to teach. No one disputes that some fraction of students’ tuition payments may be used for course offerings that are ideologically offensive to some students, and for paying professors who say things in the university forum that are radically at odds with the politics of particular students. Least of all does anyone claim that the University is somehow required to offer a spectrum of courses to satisfy a viewpoint neutrality requirement. See Rosenberger, supra, at 892-893, and nn. 11-12 (Souter, J., dissenting). The University need not provide junior years abroad in North Korea as well as France, instruct in the theory of plutocracy as well as democracy, or teach Nietzsche as well as St. Thomas. Since uses of tuition payments (not optional for anyone who wishes to stay in college) may fund offensive speech far more obviously than the student activity fee does, it is difficult to see how the activity fee could present a stronger argument for a refund.

In sum, I see no basis to provide relief from the scheme being administered, would go no further, and respectfully concur in the judgment.

       I limit my examination of the case solely to the general disbursement scheme; I agree with the majority that the referendum issue was not adequately addressed in the District Court and the Court of Appeals, see ante, at 235 and this page, and I would say nothing more on that subject.

       Under its own reasoning, the majority need not reach the question whether viewpoint neutrality is required to decide this case. The University program required viewpoint neutrality, and both parties have stipulated that the funds are disbursed accordingly. Stipulation 12, App. 14-15. If viewpoint neutrality is a sufficient condition, the majority could uphold the scheme here on that limited ground without deciding whether it is a necessary one.

       We have long recognized the constitutional importance of academic freedom. See Wieman v. Updegraff, 344 U. S. 183, 195 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957) (plurality opinion); Shelton v. Tucker, 364 U. S. 479, 487 (1960); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589, 603 (1967).

       Our university cases have dealt with restrictions imposed from outside the academy on individual teachers’ speech or associations, id., at 591-592; Shelton v. Tucker, supra, at 487; Sweezy v. New Hampshire, supra, at 236; Wieman v. Updegraff, supra, at 184-185, and cases dealing with the right of teaching institutions to limit expressive freedom of students have been confined to high schools, Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 262 (1988); Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 677 (1986); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 504 (1969), whose students and their schools’ relation to them are different and at least arguably distinguishable from their counterparts in college education.

       Indeed, acceptance of the most general statement of academic freedom (as in the South African manifesto quoted by Justice Frankfurter) might be thought even to sanction student speeeh codes in public universities.

       I have noted in other contexts that the act of funding itself may have a communicative element, see Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 892-893, n. 11 (1995) (dissenting opinion); National Endowment for Arts v. Finley, 524 U. S. 569, 611, n. 6 (1998) (dissenting opinion), but there is no allegation that such general expression is objectionable here, nor is it clear that such a claim necessarily raises substantial First Amendment concerns in light of the speech promoting and educational aspects of this expression. Cf. Buckley v. Valeo, 424 U. S. 1, 92-93 (1976) (per curiam). See also infra this page and 241-248.

       True, one does not have to go to college, but one does not have to own real estate or receive a dividend.

       Unlike the majority, I would not hold that the mere feet that the University disclaims speech as its own expression takes it out of the scope of our jurisprudence on government directed speech. We have never generally questioned a university’s “spacious discretion” to allocate public funds. See Rosenberger, supra, at 892 (SOUTER, J., dissenting) (citing Rust v. Sullivan, 500 U. S. 173 (1991), and Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983)).

       Of course, I believe that even a government program that promotes a broad range of expression is subject to the specific prohibition on government funding to promote religion, imposed by the Establishment Clause. See Rosenberger, supra, at 882 (Souter, J., dissenting).

       The legitimacy of the governmental objective here distinguishes the case in my view from one brought by a university student who objected to supporting religious evangelism. See Rosenberger, supra, at 868-871 (Souter, X, dissenting).