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.
Might sound nuts, but has a sound legal basis (Score:5, Interesting)
Pun intended?
Seriously, though, after Qualitex, [wikipedia.org] 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...
Trademark as an anti-competitive tool (Score:3, Interesting)
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.
Re:The legal argument should fail for this (Score:3, Interesting)
I already commented on this elsewhere, but actually NBC chimes are NOT consistent. Yes, there is the well-known "chime"; but they also use variations on it with different instruments, or with people (e.g. Jim and Pam from "The Office" singing it). And you can bet that if a competing network used the same chimes played by a different instrument (even something NBC has never used before, like a theremin [wikipedia.org]), you can bet they'd be slapped with trademark infringement right quick.
Trademark is about the relationship between a mark and a company or symbol. If the relationship is strong enough, and well-known enough, there's probably a case to be made for it. Not knowing the details of this particular instance, we can't say, but it's not an absurd argument.
Re:The legal argument should fail for this (Score:3, Interesting)
Take a look at some of the other sound marks:
http://www.uspto.gov/go/kids/kidsound.html [uspto.gov]
You'll see plenty that are as you describe, the same way every time. Things like NBC, Intel, MGM, AT&T (even though they obviously recorded their 'official' version through a phone system, then compressed it down to 8kbps, then cut off the last half second), THX, Fox fanfare etc are always the same.
But look at some of the others on there - Fox got a mark for Homer's "D'oh" sound, that's not always the same thing. Same with the AFLAC duck, he's on there too. There are several generic commercials on there of people just saying tag lines over music (is it really necessary to mark "At Beneficial TOOT TOOT You're Good for More"?)
And if you're feeling nostalgic, ELORG's second clip is the way to go. Also, Certus' Shakuhachi sound is pretty sweet (if only a generic instrument sound), and the THX tone always gives me chills. And apparently you can mark Hanson's Symphony 2, op. 30 even if you're not Hanson.
Re:It seems legit (Score:4, 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."
Re:Might sound nuts, but has a sound legal basis (Score:3, Interesting)
IANAL, but...
I've been on several duck tours, from several different companies in different states. Every one of them asked their customers to make some form of quacking noise (to the mixed amusement and annoyance of people around us - one taxi driver in Boston quite memorably shouted back "QUACK THIS!" and stuck up his middle finger, but I digress). Several (not the plaintiff or defendant in this case) even handed out cheap plastic duck noisemakers as part of the ticket price.
I'd have a hard time believing that trademarking the sound of a duck noisemaker quacking as a representation of a specific duck tour company would hold up in court. It's a common theme amongst all duck tour companies, and an obvious association. "I'm climbing on board a colorfully-painted DUKW, I see pictures of ducks, and I hear quacking noises from excited passengers, yup, I'm on a Duck Tour all right!"
Now if this company CUSTOM-DESIGNED a duck quacker thingie and handed out those, and they sounded markedly different from any commonly-available duck call, I could see trademarking THAT sound. I could even see soundmarking the use of, say, a kazoo on a duck tour. That would be a differentiating factor, because it's a noisemaker not usually associated with duck tours.
Previously-cited examples include a lion's roar to denote a film company, or three notes or a picture of a peacock to differentiate one TV station from another. But MGM can't prevent anyone from playing a lion's roar during a nature documentary on Africa, and NBC couldn't prevent someone from using a picture of a peacock (even a rival network) as part of a television show. Trademarks must be unique (complex company logo) or uniquely applied (the word WINDOWS to describe a computer operating system).
But this is a common sound, made by a commonly-available kids toy, that is also commonly associated with duck tours. I can't see how one duck tour operator could suddenly decide he has exclusive rights to use the sound in association with duck tours, when many of them have done so for years.
If the group used kazoos, OK, there we have a serious differentiating factor. Kazoo "music" is not normally associated with duck tours, so all they have to do is say "XYZ Duck Tours. It's a kaZOO out there!" in their ads, hand out crappy plastic kazoos shaped like duck beaks, and BAM! (trademark Emeril Legassi, but only for cooking!) - trademarkable image/sound association with their specific duck tour. It'd be quirky enough to differentiate them and be a unique image for their company. Easily unique enough to trademark.
It's still a common sound made from a common device, so CUSTOMERS of their rivals are free to use it while riding, but their rivals could not legitimately use kazoos or kazoo sounds as part of their promotion or advertising.
May confuse some potential customers... (Score:2, Interesting)