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Tour Companies Battle Over Trademarked Duck Noises 251

Posted by samzenpus
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.

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Tour Companies Battle Over Trademarked Duck Noises

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  • by Spencerian (465343) on Tuesday September 01, 2009 @01:19PM (#29275517) Homepage Journal

    I think the lawsuit is quackery, myself.

  • by langelgjm (860756) on Tuesday September 01, 2009 @01:23PM (#29275565) Journal

    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...

    • > they might run into problems if the duck calls are made with the purpose of closely imitating natural sounds, though...
      Fortunately, duck calls are fictitious works. Any resemblance to actual animals, whether living or dead, is purely coincidental.

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

    • by spun (1352) <loverevolutionary@nOSPAM.yahoo.com> on Tuesday September 01, 2009 @01:33PM (#29275745) Journal

      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.

      • by langelgjm (860756)

        Look at Qualitex again, though. The green-gold color is arbitrary. The only reason it's able to be trademarked is because it has acquired a secondary meaning. The same would apply here - if the tour company is associated with these duck sounds enough, the sounds may have acquired a secondary meaning.

        Any injunction against use would also only apply to other tour companies, not people using duck calls in general. (Though with trademark dilution, its possible that related business areas would be encompassed as

        • nobody can trademark the word 'Quality' by itself.

          Look at Qualitex again, though

          When you take of the last letter of a word, and put two new ones on, it usually becomes a different word.

          • by langelgjm (860756)
            You should probably read the link I originally posted, since the Qualitex case has nothing to do with the word quality. The issue was whether a color could be trademarked.
      • I would tend to agree with that before I realize that MGM marked their lion roar, which you could argue the same way. You would never be able to convince a court to revoke MGM's mark though.

        What strikes me as strange about this particular case is that the sound in question isn't a specific sound, it's made by the company's customers. MGM's lion is a specific sound, it's recorded and always the same, the duck sound is made by customers though, it seems a little strange.

        • by sconeu (64226)

          Didn't Harley-Davidson trademark their engine roar as well?

          • They spent 6 years trying before giving up. Their competitors submitted arguments that the v-twin sound from several different styles of engines all sounded the same, HD eventually withdrew their application.

      • by Deadstick (535032)
        You can still play the three notes of the chimes in a commercial

        You could conceivably make a case for controlling even that. The NBC chimes consist of the notes G, E, C -- which, according to some sources, constituted an acronym for General Electric Corp which had an interest in NBC.

        rj

        • Congrats, you just eliminated one of the 343 possible combinations of 3 notes from any use in advertising!

          Without the instrument, they have no case. They can't just take over all use of the notes themselves. Otherwise, I couldn't do anything remotely similar to any song that's still under copyright.

      • by meerling (1487879)
        I would have to agree with you.

        Additionally, the article (trademark link expired) indicates it's for "a quacking noise made by tour guides and tour participants by use of duck call devices" which raises a few red flags for me. The activities or performers shouldn't be relevant to the sound if the sound is the Trademark. It's like saying the sound is not important, it's what's causing the sound that we are trademarking, so nobody riding a duck (if tourist or tourguide) can use duck calls.

        And second, let's fa
      • by furby076 (1461805)
        You are neglecting the context of the situation. They are not getting sued for selling quack devices. Not getting sued for just sitting around using the quack devices. They are getting sued for using the quack devices while giving a city tour. Let them use the quack devices while sitting at a restaurant eating pizza - then they can make their own TM.

        -------------

        Scuba [youtube.com]
      • Re: (Score:3, Informative)

        by MobyDisk (75490)

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

        Also, I think ducks used it even before that.

    • by JSBiff (87824) on Tuesday September 01, 2009 @01:33PM (#29275747) Journal

      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.

      • by langelgjm (860756)

        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.

        You're probably thinking too much like a computer person, and not enough like a lawyer. I'm betting NBC's sound mark isn't a specific recording of the chimes - they've got lots of different instruments and timbres playing those chimes, even people humming them on their adverts. Ride the Ducks was able to get a trademark on its sound, so it must have been able to specify something in its paperwork. Whether it's enough to support their lawsuit is a different story.

        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.

        Because this is trademark, not patent. The is

      • Good point. Really it is only generated through a performance with an instrument of sorts, not completely unlike a trumpet or another horn of some sort. Better call in the RIAA on this one.
      • by meerling (1487879)
        hmmm, sound mark singing acapella, in groups of 3 to 5.
        I'll make a mint suing barber shop quartets!
        They have money, right?
        Might have to specify the song though....

        Yeah, that would be stupid, inane, unlikely to work, etc...
        Drat, another evil plan dashed to bits on the rocks of morals and reason....
      • Re: (Score:3, Informative)

        by AndersOSU (873247)

        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.

      • I want to soundmark people mooing at cows when driving past real cows. I could become an overnight millioniare!

      • by nuckfuts (690967)

        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?

        Even recorded sounds are "slightly different" than the original. And when you replay a recording, 'dynamically' generated sounds are produced by your speakers. Every sound system introduces some distortion and infidelity. Just because each duck call would be slightly different doesn't change the fact that they would be recognized as the same sound - a quack.

        Similarly, if the RIAA sued you for copyright infringement of music, it would be useless to argue that your copy of a song was in a lossy format, and th

    • What do the NBC chimes attract?
    • by Ogive17 (691899)
      Unique sounds I can understand... but the sound people make using a child's toy? Unless it sounds exactly the same every time, it's rediculous. NBC's chime is always the same. The noise coming from a duck call? You can make it sound like a real duck, or like a fart, or like the most annoying sound in the world (Joan Rivers' voice). How can you trademark something so varied?
      • > the most annoying sound in the world (Joan Rivers' voice)
        Joan Rivers is definitely in the top ten, but I think a St. Bernard with a hairball is worse.

    • by mea37 (1201159) on Tuesday September 01, 2009 @01:47PM (#29275877)

      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.

      • by AndersOSU (873247)

        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?

        Yes and Yes. You've seen these duck-tours right? They all look sort of th

        • Re: (Score:3, Interesting)

          by natehoy (1608657)

          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 believi

      • by Fred_A (10934)

        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?

        What *I* want to know is whether any of the tourist have yet been shot by hunters or assaulted by ducks of the opposite sex. If not, then the gadgets probably aren't proper duck calls at all and shouldn't be referred to as such.
        I suspect it's all a fraud to lower the mindshare of *real* duck calls.

  • by Anonymous Coward

    They'll be hoping they can duck the bill for the lawsuit, but it'll no doubt leave a foul taste in their mouths...

  • Correct me if I'm wrong, but isn't it true that something functional cannot constitute a trademark? Surely an imitation duck call is functional, and therefore is outside of the scope of valid trademarks...?

    • Correct me if I'm wrong, but isn't it true that something functional cannot constitute a trademark?

      Try telling that to The Tetris Company, which claims [gamasutra.com] that it owns trade dress on "Geometric playing pieces formed by four equally-sized, delineated blocks" plus eight items that appear in Nintendo's Dr. Mario.

    • by langelgjm (860756) on Tuesday September 01, 2009 @01:28PM (#29275651) Journal

      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.

      • by jgtg32a (1173373)
        Those boats are called "Duck Boats"

        http://en.wikipedia.org/wiki/DUKW
      • Re: (Score:3, Insightful)

        by natehoy (1608657)

        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

  • by neonprimetime (528653) on Tuesday September 01, 2009 @01:24PM (#29275583)
    ... Aflac [wikipedia.org]!
  • It seems legit (Score:5, Insightful)

    by furby076 (1461805) on Tuesday September 01, 2009 @01:24PM (#29275585) Homepage
    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 [youtube.com]
    • by bzzfzz (1542813)
      Not necessarily. Trademark law protects identifying sounds against confusing use of the same or similar sounds that might lead customers to mistakenly believe that the product or service thus identified originates from the same source. The chimes and the lion are clear examples of the sound being an identifying feature. Trademark law does not extend to the protection of elements of comedy or entertainment. It is not clear that the duck sounds themselves serve an identifying purpose.

      The related problem

      • by furby076 (1461805)
        It seems your argument is based on trademark (with regards to sound) protecting identifying markers (e.g. MGM lion) and that trademark would not apply to functional purposes which would require a patent.

        Given that - what functional purpose does the quack sound on this tour-bus (it also goes on water) have? While it could be argued, I highly doubt it would pass mustard (at least ours) to say the sound is to warn passerby to avoid accidents -- maybe warn other ducks ;) The sound identifies this tour-bus g
        • by bzzfzz (1542813)
          It's funny. It makes people laugh. Since the product being provided is entertainment, the funny bits are the sine qua non.
          • by furby076 (1461805)
            Damn you philadelphia public schools for getting rid of latin!

            Thank you Google for translating Latin!

            ----------------
            Scuba [youtube.com]
    • Re:It seems legit (Score:4, Interesting)

      by radtea (464814) on Tuesday September 01, 2009 @02:16PM (#29276305)

      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."

  • by MiniMike (234881) on Tuesday September 01, 2009 @01:26PM (#29275627)
    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.

    • by sjames (1099)

      Yeah, how will consumers know if they are on the duck tour run by litigious jackasses or not? This cannot be allowed to continue.

      Does anyone make a call for that? I suppose a generic recording of a Donkey might give the general idea. Perhaps another tour boat company could trademark taunting them by playing a braying ass sound?

  • by geekoid (135745)

    These people are quackers, and we shouldn't put up with this kind of quackery. In the end, It's not what it quacked up to be.

    The Duck is done dabbling the morase of mergansers for a plummage of puns.

    Quack.

  • by ceswiedler (165311) *

    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.

    • The question is what breed of duck have they trademarked the quack of? The idea of soundmarking requires that it be a unique sound. There are many different species of duck, the sounds made by the different species are different, yet most if not all would be identified as quacking. That sums up the problem with this "soundmark", unlike the MGM Lion or the NBC chimes it is not specific, it attempts to soundmark a whole class of sounds.
  • It's not hard to clap with one hand with a little practice. I picked it up in middle school. The trick is to let your fingers be loose while your wrist is fairly stiff and flap back and forth. There's various YouTube clips of this; here's one: http://www.youtube.com/watch?v=L8Q1nLwYK6E [youtube.com].

  • So how long before they "Smell Mark' the resulting smell?

  • by Adrian Lopez (2615) on Tuesday September 01, 2009 @01:39PM (#29275799) Homepage

    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.

    • I know people with 4 digit IDs are exempt from reading TFA, but did you even glance at the summary? It's got about as much to do with duck hunting as your post has with reality.
  • by clone53421 (1310749) on Tuesday September 01, 2009 @01:40PM (#29275803) Journal

    An MP3 of coins jingling should be adequate.

    • Unless someone owns the copyright to the sound of coins jingling. And if you try to pay that person back using the coins sound clip as well, you'll just end up with feedback. And if someone owns the copyright on feedback, then I think a robot's head somewhere will explode.

      • Ah, but there's prior art [google.com] for that.

        Although I must say that'd be funny. "Hey, we trademarked that sound, you must pay us — (skreech) OW!"

  • by icewalker (462991) on Tuesday September 01, 2009 @01:41PM (#29275817)

    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.

    • Re: (Score:3, Interesting)

      by langelgjm (860756)

      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

    • Re: (Score:3, Interesting)

      by amicusNYCL (1538833)

      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. Sa

    • ITs funny they tried to trademark a sound that is usually presented at a decibel level illegal in most states.
    • 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

  • What next?!? (Score:4, Insightful)

    by Locke2005 (849178) on Tuesday September 01, 2009 @01:47PM (#29275867)
    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!"
  • by Locke2005 (849178) on Tuesday September 01, 2009 @01:49PM (#29275903)
    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!"
  • Subject doesn't make much sense, right? After all, it isn't my story (nevermind the fact that I doubt a story could be trademarked). But it sounds like that's exactly what this company is doing, claiming trademark over the actions of other people.

    IANAL, but that seems fishy.
  • I'm fairly sure ducks have been making those calls for a long time.

  • by randomaxe (673239) on Tuesday September 01, 2009 @02:23PM (#29276407)
    It sounds like this is not simply a lawsuit over the trademark of a sound, but more specifically, the use of a specific sound for a specific purpose.

    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.

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