Slashdot Mirror
Tour Companies Battle Over Trademarked Duck Noises
Tour company Ride the Ducks is suing rival tour company Bay Quackers, alleging that it holds trademark rights to the sound made by tourists using duck call devices, while on amphibious vehicle tours. San Francisco-based Ride the Ducks holds a 'sound mark' on the noise. Very few companies hold sound marks, but some of the more famous include: the NBC chimes and the MGM lion. The company holds US Trademark No. 2,484,276, which protects a mark consisting of 'a quacking noise made by tour guides and tour participants by use of duck call devices throughout various portions of [guided amphibious vehicle] tours.' Reading this makes my think that there is a room full of litigious monks somewhere, just waiting for someone to try clapping with one hand.
I think the lawsuit is quackery, myself.
Vos teneo officium eram periculosus ut vos recipero is.
So that all those motherfuckers with boom cars out there will stop annoying everyone with the noise they refer to as ''music''.
Pun intended?
Seriously, though, after Qualitex, there's no reason to think that sounds can't be trademarked just because they're sounds. The NBC chimes are a great example. They might run into problems if the duck calls are made with the purpose of closely imitating natural sounds, though...
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
They'll be hoping they can duck the bill for the lawsuit, but it'll no doubt leave a foul taste in their mouths...
Correct me if I'm wrong, but isn't it true that something functional cannot constitute a trademark? Surely an imitation duck call is functional, and therefore is outside of the scope of valid trademarks...?
I'd be an IP attorney and I'd be rich! Then I could retire and sit around and jack off to internet porn.Instead, I'm an out of work programmer who's sitting at home jacking off to internet porn while posting as an AC on Slashdot.
My life would be so much better if I were an IP lawyer!
... Aflac!
Unless there was a timing issue (e.g. they trademarked this last week, or the other company has been doing this before these guys have) this lawsuit is legitimate. Someone came up with an idea (i personally hate the quack duck tours but that is me) and it made them money. There are tons of tours going around and this was a unique idea to involve kids and adults who enjoy acting as kids. While people may not agree with trademarks they are legitimate and a company has a right to protect their trademark - especially when it makes money for them.
--- Scuba
I do not support "The Man". I also do not support your irrational stupidity
So is this Ride the Duck company manufacture their own duck call since the hold a patent on the sound mark? If Ride the Duck just bought some generic ass duck call devices and uses it then i think they pretty don't have much of a case or a patent on the sound mark.
Also this kind of shit just make jokes out of the court system
Correct me if I'm wrong, but isn't it true that something functional cannot constitute a trademark?
Try telling that to The Tetris Company, which claims that it owns trade dress on "Geometric playing pieces formed by four equally-sized, delineated blocks" plus eight items that appear in Nintendo's Dr. Mario.
The lawsuit alleges that Bay Quackers' use of the sound is infringing and is likely to confuse consumers.
Yeah, how will consumers know if they are on the duck tour run by litigious jackasses or not? This cannot be allowed to continue.
Shouldn't it only be the exact same sound? Otherwise any hunter out in the wood, who is duck hunting will owe this company money. I cannot fathom that this one would be acceptable. If one person makes a duck sound that is drawn out versus another that makes it sound short, how can you patent one generic duck call for all of those variations. I would say that NBC has their chimes and they've made that a distinctive trade mark and I'm not sure how elaborate that trademark would be. The Aflac sound is distinctly saying Aflac. But a duck call is too generic imho.
Life takes interesting turns, but the most interest is when you're off the beaten path.
These people are quackers, and we shouldn't put up with this kind of quackery. In the end, It's not what it quacked up to be.
The Duck is done dabbling the morase of mergansers for a plummage of puns.
Quack.
The Kruger Dunning explains most post on
The quacking sound is an original concept (for an amphibious tour) which is an integral part of the company's brand. What's the problem with them defending their sound mark? It's not like they got a sound mark on a car horn honking and are now suing all taxi drivers.
You know, not all trademarks, copyrights, businesses, or lawsuits are bad. Sometimes you need to actually use your brain to determine which are which.
It's not hard to clap with one hand with a little practice. I picked it up in middle school. The trick is to let your fingers be loose while your wrist is fairly stiff and flap back and forth. There's various YouTube clips of this; here's one: http://www.youtube.com/watch?v=L8Q1nLwYK6E.
Not a typewriter
So how long before they "Smell Mark' the resulting smell?
WTF? Over?
I would argue that the duck quack is a generic sound, used by hunters for hundreds of years. It is like a particular note on a generic piano. Or a generic word, such as 'Quality.' Nobody can trademark the word 'Quality' by itself. The duck quack is not like the NBC chimes or other sound marks, which are carefully engineered and specific. You can still play the three notes of the chimes in a commercial, just not the specific chime sounds. In a sane world, generic duck quacks can not be trademarked.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
I could see, potentially, someone trademarking/soundmarking a specific, unique sound. A particular recorded clip, for example. However, 'dynamically' generated sounds like someone blowing a duck call - how can that be 'sound marked'? After all, every time someone blows a duck call, the sound will be *slightly* different, unique, if you will.
How can you trademark/soundmark something which DOES NOT YET EXIST?
Anyhow, people have been using duck calls for many, many years (uhh, hunters, bioloigsts?) How can one company trademark something people have been doing forever.
I would like to sound mark human singing. Yeah, that's the ticket. Every person who makes any money singing, or selling recordings of songs, or selling advertising on 'free' streams/radio/tv broadcasts, songs embedded in video games, or any other media, now owes me a license fee.
I'll start by going after buskers (you know, those aspiring artists who play for tips in subways, street corners, and parks) - they'll be too broke to defend themselves, so I can build up a nice body of 'precedent'. Then, when I start suing larger marks, I can point to the previous cases as precedent.
Here is the "duck boat" used by these tour companies. It's an amphibious vehicle that was used in WWII for the D-Day landing. The boats are kind of cool. Quacking while riding in them, not so much.
This is rather like a "patent by trademark claim": claim a trademark on the sound of a duck call to ensure your customers are the only ones allowed to attract ducks through the use of duck calls while on tour. It's a trademark claim being used to prevent a practical use of an old invention.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
An MP3 of coins jingling should be adequate.
Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
OK, I can see trademarking the NBC Chimes and the MGM Lion. These sounds are CONSISTENT and definitely identify the brand. It is the same audio through and through time and time again. The duck call is not the same sound time and again. The sound will be different based on who does it, how they hold the duck call, etc. Unless they have the sound on a speaker and pipe it out that way, this lawsuit should fail.
This is no different than Harley Davidson attempting to trademark the sound of their engines. It's an engine! No matter how good you are, the engines will just sound different from bike to bike. I should note that Harley Davidson ultimately failed in their bid to trademark the sound of their engines.
The truth is usually just an excuse for lack of imagination.
Will taxi companies start registering "gesture marks" and "profane exclaimation marks", attempting to trademark their drivers reaction to other drivers cutting them off? "I'm sorry, but your referring to me as 'fuck you, you ignorant asshole', as well as your choice of finger position, is a violation of our trademarks. You will be hearing from our lawyers!"
I've abandoned my search for truth; now I'm just looking for some useful delusions.
I just know there is a Disney lawyer sitting in a back room somewhere thinking, "Man, we just gotta get a trademark on the sound of farts!"
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Or copyrighting laugh tracks. Copyright the sound of splashing water, falling rain.
Terrance and Phillip copyrighting their farts. Harley tried to sue another maker over the sound of the exhaust system, or something like that.
Best regards.
Subject doesn't make much sense, right? After all, it isn't my story (nevermind the fact that I doubt a story could be trademarked). But it sounds like that's exactly what this company is doing, claiming trademark over the actions of other people.
IANAL, but that seems fishy.
"I'm not sure I like the fugnutish tone you used in your post!" -RogL (608926)-
Has me wondering if the Macintosh boot chime is 'sound marked'.
I'm fairly sure ducks have been making those calls for a long time.
Slow down, cowboy! It has been 4 hours since you last posted. You must wait another few hours.
I wonder what the manufacturers of the Duck Calls have to say about this. How can anyone dictate where and when these products are quacked???
Like a trademark, a soundmark is there to identify a service or brand.
When the sound isn't used to identify a service or brand, then it is still ok to use the sound.
So you can still say "You're fired" even when Trump holds a trademark on the phrase and the same holds for duck-quacking devices which by the way have been around much longer.
Hey don't blame me, IANAB
So 'Ride the Ducks' is trying to assert trademark over generic duck sounds, made by riders and tour guides on these duck tours? I've got a simple solution for bay quackers, just trademark the sound of sniffling, coughing, and whining children, then sue Ride the Ducks when their customers make those sounds. Then cross license and form a tour guide duopoly.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
No.
No they won't.
Different industry.
This is why Microsoft can trademark "Windows" when referring to operating systems, but not when referring to transparent sections of wall.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
It sounds like this is not simply a lawsuit over the trademark of a sound, but more specifically, the use of a specific sound for a specific purpose.
In this case, they are not attempting to trademark the sound of a duck quacking, but the use of a duck quack as a noise made by tourists on an amphibious vehicle tour. That's it. You can make a duck quack sound in your own home, in your car, or in your local Starbucks, but you can't make it if you're on somebody else's amphibious vehicle tour.
To address an earlier comment, this is less like Disney trademarking the sound of farts in general, and more like Microsoft trademarking the fart sound as the sound made by a computer operating system upon start-up.
So are you responsible for this?
http://feeds.digg.com/~r/digg/popular/~3/KbxO2BQBEDA/Two_Men_Arrested_for_Getting_Off_Someone_s_Lawn
Harley - Davidson try to trademark the sound of their engine and lose?
You can trademark sounds, and I kinda agree with that in principle. However, a trademark cannot be functional, and this is where things go questionable. The duck calls aren't being used in any particular way that screams function in this particular case (there are no actual ducks involved, only the vehicles happen to be called that), but one could argue that they are functional as a part of the entertainment value of the ride. On the other side, I could easily see this as confusing the brand name of the particular operator.
Hmmm, this is tough, I really don't know who to side with in this case. It seems so silly that my impulse is to say the case should be tossed out, but by the same token, I feel the copy cats are being deliberately too copy cat-ish for my taste so I'm not for siding with them, and there is enough merit that it might be a legit case. However, again on the other side, I'm thinking how stupid this could get as some customer, of his own accord, brings a duck call aboard and uses it and that again we could have a dicey legal matter. Okay, where is my coin...
I've got the patent on fart noises made by six year-olds, beyotches!
Baltimore also has a tour like that:
http://www.baltimoreducks.com/
In a sane world...
I think I see your problem now. The legal world is not based on sanity.
When our name is on the back of your car, we're behind you all the way!
These are not tours of duck habitats. And these are not tours for ducks. These are tours for humans of human habitats. Adding the sound of a duck to such a tour is novel and arbitrary. Therefore someone should be able to trademark that sound used for that purpose. Duck sounds related to zoos, lakes, blades of grass, and ice cream would not be covered.
By the way, the reason that ducks are affiliated with the tours at all is that the vehicles they use are amphibious like ducks. Making the leap from offering tours in an amphibious vehicle to giving your passengers quackers is clever in my book.
Did you hear about the duck that tried to fly upside down?
He quacked up.
No brain, no pain.
In a sane world...
I think I see your problem now. The legal world is not based on sanity.
The original ideal of the rule of law is entirely sane. Laws are one of the only tools that we have to force bad people to do good things. I can see your point about our current system, reform is necessary. Obviously, you aren't against the rule of law itself, heck, even anarchists and libertarians like laws.
However, I think that laws should be simple enough and few enough in number that lawyers are unnecessary, because the average citizen can completely understand them all.
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
Quick clip quacking from the sidewalk: http://www.youtube.com/watch?v=jbDtqGvNjGw
News video (no quacking): http://www.youtube.com/watch?v=9ugjBah0eZg
We've got those "Ride the Ducks" assholes running around Seattle too. I always flip them off.
Violate my soundmark on one hand face-palming. This suit is plain batshit ridiculous.
you had me at #!
Bart did it. Those Zen monks were just stupid, weren't they!
you had me at #!
Did anyone else notice how similar their character in their logo is to Donald Duck. Disney could sue them into oblivion just for fun.
I remember seeing "Ride the Duck" tours in Branson, MO back in the late 80's or early 90's, so the company has been around for a while. I don't know when the Bay Quakers started. The amphibious vehicle they use for the tours apparently was called a DUKW and was used during WWII. So the reference to ducks by both companies is understandable. I don't know about trademark/soundmark issues as ianal. However I could see people getting confused by the similarities in both companies' marketing strategy. I don't know if the rides deploy in near proximity to each other -- that could definitely lead to confusion. Mostly I think it would be confusing to people spreading/receiving info about the companies via word of mouth. "Yeah, I really liked/hated the one with the duck calls..."
Howard the Duck reference?
The exact, specific sound a duck call makes has nothing to do with this lawsuit. Technically, the NBC chimes and the MGM Lion sound different every single time they're played. It depends on the quality of the audio signal, the cables, EM interference, the size and material and condition of the speaker driver, etc.
No one cares about the exact sound, and it's not like they're trademarking a waveform.
The original tour people use quacks (of different consistencies - who cares?) to identify their brand, and the quack calls are certainly not functional - it's just a fun thing for tourists to do (for some reason - I hate walking around downtown when those things go by). The company's logos and tour vehicles branded with all sorts of duck crap - and now a rival tour company is stealing their idea and taking their gimmick. I don't think I've ever heard of a better example of trademark infringement than this case, save for "Magnetbox" type electronics.
I don't think you can hold a sound mark on this, because unlike the MGM lion or the NBC chimes, it's not the same sound being played each time. And as I recall the sound has to be so distinctive as to not possibly be mistaken for anything else, which definitionally a sound that is played differently every time is.
Over the course of a generation we could solve 95% of this problem. Just enforce forced sterilization of trial lawyers. As the breed dies out so does the root problem.
This case is proof that you can find a shyster to do anything if you wave money in front of him.
Professional Politicians are not the solution, they ARE the problem.
We went on a Duck boat tour of Baltimore once. The tour guide had "personality" - he called himself Captain America and wore a Captain America jacket and baseball cap. Along with those annoying-as-fuck duck calls, he insisted we respond "Gee Captain America, I didn't know that!" whenever he gave us a Baltimore factoid. Which led to us muttering under our breath -
- Gee Captain America, I didn't know that! (you wear ladies underwear..)
- Gee Captain America, I didn't know that! (you wet the bed..)
- Gee Captain America, I didn't know that! (insanity runs in your family..)
- Gee Captain America, I didn't know that! (you're still a virgin..)
Prisencolinensinainciusol. Ol Rait!
I have very weird flexible joints and can bend my fingers back to my wrist. I can also clap one-handed. I don't do it often because people find it disconcerting. My bother-in-law studied to be a Zen Buddhist priest and I did it for him once. He roared with laughter. A very Zen response.
"What would men be without women? Scarce, sir. Mighty scarce."- Mark Twain
Could one trademark the human breathing sound in the US?
That would make quite the lawsuit of the century...
Now you guys owe me a cent/day each or stop breathing (TM) now!
No quack.
Homonyms are fun!
You're driving your car, but they're riding their bikes there.
...is totaly despicable!
watch your mouth or you'll find yourself paying a gadzillion $$ in IP damages!