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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
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.
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.
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.
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