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.

Comments

Might sound nuts, but has a sound legal basis

[langelgjm]

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...

Re:It seems legit

[radtea]

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.

The big open question in this case seems to me that they are not in fact protecting a sound, but rather any sound that happens to be made in a particular way: by tour guides or tourists using duck call devices (while on one of their tours.)

This is radically different than anything protected under trademark law in the US, which covers actual symbols, not generic techniques of producing something that might in context be considered one of an infinite group of vaguely similar things.

That is, suppose my company has a splatter of paint on a board as symbol, like a Jackson Pollock painting. I could trademark THAT SPATTER, but I could not under any currently known legal doctrine trademark all splatter paintings made by my clients, even if making splatter paintings happened to be part of the schtick I used to market my business.

I use this example because our eyes have greater acuity than our ears, and it is more obvious, perhaps, that every splatter painting made by every one of my hypothetical clients will be completely different from every other, so there is no possible way they can constitute "A symbol" within the meaning of the Act (at least as I understand it--IANAL etc.)

Every duck sound made by ever tour guide and tourist is completely unlike every other in duration and modulation, and only vaguely similar in pitch. The only thing they have in common is the device used to produce them, and the circumstances under which they are produced. As with my hypothetical splatter paintings, they are not therefore "A symbol" within the meaning of the Act as I understand it.

The general breakdown of abstract thinking in the United States would seem to be moving on apace, if this is really someone claiming that an infinite class of concrete sounds could constitute "A symbol."