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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 think the lawsuit is quackery, myself.
Vos teneo officium eram periculosus ut vos recipero is.
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...
... 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
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.
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
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.
Yeah, well I copyrighted "get offa my lawn" so you owe me like a million dollars.
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.
Your cave had an outside? Luxury!
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
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
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.
Did you hear about the duck that tried to fly upside down?
He quacked up.
No brain, no pain.
Doh!
(The preceding sound was delivered by Randy, aka "RJFerret", not by Homer Simpson, and in no way is meant to infringe on any soundmark or trademark or otherwise represent RJFerret as Homer Simpson.)
Most "Duck Tour" operators are employing a common pun, since most use surplus military DUKW amphibious vehicles.
But it's a VERY common theme, so most of the company logos are some sort of stylized duck in or around the water, or splashing water, often wearing raingear.
Every duck tour I've been on (and it's been a decent handful) has also associated some form of quacking noise with the experience (some use cheap plastic duck calls they hand out, others just ask their customers to shout "QUACK QUACK!"). So a duck call may be incidentally associated with a Duck Tour, but they are incidentally associated with each and every Duck Tour I've been on, and that's at least a half dozen of them in nearly as many states.
Since it's a common association, I don't see how it could be considered a competitive differentiating factor for a specific company.
IANAL, though.
"This post contains words, known to the State of California to cause thought. Wash brain thoroughly after reading."
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..."
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.
Socialism: a lie told by totalitarians and believed by fools.
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.
Why isn't this about brand identity?
If they've built up an association between duck calls and amphibious tours, isn't that roughly the same as building up an association between a logo or slogan and a product?
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