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.
It seems legit (Score:5, Insightful)
--- Scuba [youtube.com]
What's the problem? (Score:2, Insightful)
The quacking sound is an original concept (for an amphibious tour) which is an integral part of the company's brand. What's the problem with them defending their sound mark? It's not like they got a sound mark on a car horn honking and are now suing all taxi drivers.
You know, not all trademarks, copyrights, businesses, or lawsuits are bad. Sometimes you need to actually use your brain to determine which are which.
Generic sounds, words can not be trademarked (Score:5, 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.
Maybe *specific, unique* sounds (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.
The legal argument should fail for this (Score:5, 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.
What next?!? (Score:4, Insightful)
Re:Might sound nuts, but has a sound legal basis (Score:5, 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.
Re:A likely story (Score:1, Insightful)
I was hoping we were going to be able to duck the obligatory puns with this one.
Let me help the moderators. Notice the word "duck". See? It's a pun. It's irony. "Funny": yes. "Troll": abuse of moderation/don't understand what troll means.
Misunderstanding of the actual issue? (Score:3, Insightful)
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.
Re:Generic sounds, words can not be trademarked (Score:1, Insightful)
Re:Generic sounds, words can not be trademarked (Score:4, 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.
Re:Correct me if I'm wrong... (Score:3, Insightful)
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.
Re:Misunderstanding of the actual issue? (Score:2, Insightful)
Re:Might sound nuts, but has a sound legal basis (Score:1, Insightful)
If I'm walking down the street and saw a tour company where the tourists are making quacking sounds, I'd think "Holy hell, those people are bloody idiots," continue walking and avoid any eyecontact with the rubes.
I don't think "Ride the Ducks" would even begin to cross my mind.
Re:Trademark as an anti-competitive tool (Score:3, Insightful)
There are LOTS of companies in the US that offer so-called "Duck Tours". The name isn't a coincidence, it's a play on the name of the boat used (DUKW, a US Military surplus amphibious vehicle). And every single one of them that I've heard of uses the same name for the same reason, and continues the pun by encouraging their customers to make quacking noises. It's a generic name and business model, not a specific brand.
And, yes, they are really silly. But they're fun, and quite often an interesting tour of the waterfront from the road, then the same stretch from the river. I've been Duck Tours run by at least a half dozen different companies, and in all of them you can expect:
A: a brightly-colored DUKW or a newer boat that's been made to look like one,
B: a tour that involves driving on land for a while, then driving straight into the water somewhere, tooling around on the water, then coming back out on land, and
C: everyone on board will be making quacking noises at the request of the tour guide / driver.
The legal argument is sound (Score:3, Insightful)
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.
Re:Ducks + tours is a novel combination (Score:3, Insightful)
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?