Tour Companies Battle Over Trademarked Duck Noises 251
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.
Re:Correct me if I'm wrong... (Score:5, 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.
Re:Apologies in advance (Score:1, Informative)
They'll be hoping they can duck the bill for the lawsuit, but it'll no doubt leave a foul taste in their mouths...
Fowl [reference.com].
Re:Maybe *specific, unique* sounds (Score:3, Informative)
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.
Re:Generic sounds, words can not be trademarked (Score:3, Informative)
The duck quack is a generic sound, used by hunters for hundreds of years.
Also, I think ducks used it even before that.
Re:Ducks + tours is a novel combination (Score:3, Informative)
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.
Re:Generic sounds, words can not be trademarked (Score:1, Informative)
I would argue that the duck quack is a generic sound, used by hunters for hundreds of years.
Alright, quick trademark primer here (and yes, IAAL). A trademark is a "source identifier." Its function is to tell you immediately, "this good or service originates from purveryor X, whom I already know." When you see two golden arches, you immediately think "McDonald's," along with all the reputation for good or ill that attaches to that name in your mind. Since the purpose of a trademark is to identify the source of goods or services, rather than to grant any kind of monopoly, you can't take generic names or functional aspects of a product and call them your "trademark." That would unfairly disadvantage others who want to compete with you. So you are absolutely correct that a duck quack would be non-protectable as a trademark for a duck call. In that case, the problem would not be that it's "generic" (generic would be saying that you sell Duck Call(tm)-brand duck calls). The problem is that it's functional for a duck call. A duck call cannot perform its intended function without making a duck sound. If you want to protect what something does, you patent it. Under current U.S. law, a duck call has not been patentable for a long, long time because it is no longer novel.
On the other hand, a duck call may be a perfectly good trademark for a tourism company. There's nothing about tourism that inherently requires you to use a duck sound. In fact, you can very successfully operate a tour without the need for duck sounds. So for any random tour service, the use of duck sounds would probably be categorized as "arbitrary," which is near the top of protectability for trademarks (the only thing better is totally made up words like "Exxon" or "Kodak"). But there is one other important factor here. The tours are conducted on a WWII-vintage amphibious vehicle called a "DUKW," aka "Duck." In that case, duck-related marks are no longer arbitrary. They are at best suggestive (i.e., of the fact that these are tours conducted on a DUKW, aka "Duck"), and possibly descriptive. Now you are at the lower tiers of protectable trademarks. For descriptive marks, you have to show that you have acquired secondary meaning (for example, you know who makes a Quarter Pounder(tm), even though it's a descriptive name, therefore it has acquired secondary meaning).
The very worst case scenario is that you are right---that "Duck Tours" is generic for tours conducted on a DUKW, and that duck-related source identifiers would also be generic. But that's hardly a foregone conclusion.
So to make a long story short, whether something is "generic" or "descriptive" depends on the goods or services. BALL POINT PEN would not be a protectable trademark for ball point pens. But BALL POINT PEN might be a perfectly good brand name for chewing gum.