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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 was thinking along those lines, but apparently these "duck tours" have nothing to with actual ducks, instead referring to the amphibious vehicle the sightseeing tours are conducted in. So the duck calls aren't functional (or if they are, it's incidental).
Generally, though, if they were functional, you'd be right, it shouldn't be a subject for trademark.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
the way trademarks work is that anyone can use the mark, they just can't use it in a way that might lead someone to believe what you're offering a product similar to the one to which the trademark applies.
For instance, if I own a ranch I can advertise mustang (horse) rides without running afoul of Ford's trademark.
In this case, the duck boat operator who holds the mark isn't going to go after hunters, he's going to go after other companies that use duck calls in their duck boat tours.
The duck quack is a generic sound, used by hunters for hundreds of years.
Also, I think ducks used it even before that.
Sure, but the purpose of the trademark system is not to protect someone's clever business idea. It's to protect brand identity.
Trademarks don't (and shouldn't) protect you from your competitor selling an identical product, but from your competitor pretending to be you.
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