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Tour Companies Battle Over Trademarked Duck Noises

Posted by samzenpus on from the totally-quackers dept.

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.

24 of 251 comments (clear)

  1. A likely story by Spencerian · · Score: 4, Funny

    I think the lawsuit is quackery, myself.

    --
    Vos teneo officium eram periculosus ut vos recipero is.
    1. Re:A likely story by interkin3tic · · Score: 5, Funny

      I was hoping we were going to be able to duck the obligatory puns with this one.

    2. Re:A likely story by Red4man · · Score: 5, Funny

      Of course not. You should just let it slide like water off a duck's back.

      --
      Sock Puppets: damn_registrars=pudge_confirmer=jimmy_slimmy=raiigunner=cml4524=a_klavan=red4men=ronpaulisanidiot
    3. Re:A likely story by Stealth+Captain · · Score: 4, Funny

      I'd hate to see the attorney's bill for this case...

      --
      My food is problematic.
    4. Re:A likely story by geekoid · · Score: 4, Funny

      That's....fowl.

      --
      The Kruger Dunning explains most post on /. http://en.wikipedia.org/wiki/Dunning%E2%80%93Kruger_effect
    5. Re:A likely story by Red+Flayer · · Score: 3, Funny

      That wasn't fowl, the poster is just slightly mallardjusted.

      --
      "Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
    6. Re:A likely story by severoon · · Score: 4, Funny

      Stupid FA is about a bunch of stupid people making stupid use of our legal system to settle something stupid. Does anyone take a duck tour because that particular quacking sound is the best one? These bunch of stupids should all be rounded up and send to stupid camp where they can sit in a stupid circle around a campfire clapping their stupid hands and hopefully find a new and creative way to burn themselves alive.

      --
      but have you considered the following argument: shut up.
    7. Re:A likely story by the_womble · · Score: 4, Funny

      Even if they win they will get poultry damages, and it may prove to be the attorney's swan song. The judge is unlikely to take drake-onian measures.

    8. Re:A likely story by Digital+Vomit · · Score: 5, Funny

      Your puns are all terrible!

      <ducks>

      --
      Modern copyright is theft of culture from everyone and it retards the progress of the useful arts and sciences.
  2. Might sound nuts, but has a sound legal basis by langelgjm · · Score: 4, Interesting

    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
    1. Re:Might sound nuts, but has a sound legal basis by mea37 · · Score: 4, Insightful

      Sure. Now let's just remember what a trademark is actually for - it protects the trademark holder's reputation by preventing others from passing themselves, their products and/or services, or (to an extent) their views as those of the trademark holder.

      Do the passengers on this other tour line get to a certain point in their tour, play with duck calls for a moment, and suddently think "wait, am I on that other carrier's tour?"

      Is a passerby likely to see the tour boat, hear the duck calls, and associate it with the other carrier, perhaps tracking the boat to port so they too can get a tour from this well-reputed carrier, only to find themselves duped into taking someone else's tour?

      A trademark is a symbol - it identifies a product, but it is not part of the product. You hear the NBC chimes coming over a speaker, you think to yourself "ah, I'm listening to NBC programming; what I'm about to hear is a product of NBC"; but you don't listen to NBC to hear the chime.

      This is a case where one tour operator is trying to force another to change the product itself - the experience of the tour. Their being very clever about it; but as I do with any IP-abuser, I hope they suffer an expensive failure in this effort.

    2. Re:Might sound nuts, but has a sound legal basis by tsstahl · · Score: 3, Funny

      Me, I'm trademarking tourists blowing dog whistles that are inaudible to humans.

      And how would you enforce this? Send dogs to law school? They are already pretty good at chasing ambulances...

  3. It seems legit by furby076 · · Score: 4, Insightful

    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
    1. Re:It seems legit by radtea · · Score: 3, Interesting

      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."

      --
      Blasphemy is a human right. Blasphemophobia kills.
  4. Almost makes sense... by MiniMike · · Score: 4, Funny
    FTFA:

    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.

  5. Re:Correct me if I'm wrong... by langelgjm · · Score: 4, Informative

    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
  6. Generic sounds, words can not be trademarked by spun · · Score: 4, Insightful

    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
    1. Re:Generic sounds, words can not be trademarked by spun · · Score: 3, Insightful

      The duck quack is a generic sound, used by hunters for hundreds of years.

      Also, I think ducks used it even before that.

      Yes, but they used it to advertise sex with ducks, theoretically a very different market than amphibious tours.

      --
      - None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
  7. Maybe *specific, unique* sounds by JSBiff · · Score: 5, Insightful

    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.

  8. They could just pay the lawsuit... by clone53421 · · Score: 5, Funny

    An MP3 of coins jingling should be adequate.

    --
    Alexander Peter Kristopeit bought his basement from his mommy for one dollar.
  9. The legal argument should fail for this by icewalker · · Score: 4, Insightful

    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.
  10. What next?!? by Locke2005 · · Score: 3, Insightful

    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.
  11. This will not end well by Locke2005 · · Score: 4, Funny

    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.
  12. An easy solution by spun · · Score: 4, Funny

    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