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Tour Companies Battle Over Trademarked Duck Noises

samzenpus posted more than 4 years ago | from the totally-quackers dept.

The Courts 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.

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251 comments

A likely story (4, Funny)

Spencerian (465343) | more than 4 years ago | (#29275517)

I think the lawsuit is quackery, myself.

Re:A likely story (5, Funny)

interkin3tic (1469267) | more than 4 years ago | (#29275751)

I was hoping we were going to be able to duck the obligatory puns with this one.

Re:A likely story (5, Funny)

Red4man (1347635) | more than 4 years ago | (#29275815)

Of course not. You should just let it slide like water off a duck's back.

Re:A likely story (4, Funny)

Stealth Captain (1495523) | more than 4 years ago | (#29275931)

I'd hate to see the attorney's bill for this case...

Re:A likely story (1, Insightful)

Anonymous Coward | more than 4 years ago | (#29276021)

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.

Re:A likely story (1)

beadfulthings (975812) | more than 4 years ago | (#29276269)

I started to disagree with you, but you could be right:

If it looks like a duck,
And quacks like a duck,
And there's duck doo on your pickup truck,
Then, brother, bet your bottom buck,
It ain't no armadillo.

An easy solution (4, Funny)

spun (1352) | more than 4 years ago | (#29276281)

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.

I will copyright the ''boom'' noise (0)

Anonymous Coward | more than 4 years ago | (#29275539)

So that all those motherfuckers with boom cars out there will stop annoying everyone with the noise they refer to as ''music''.

Re:I will copyright the ''boom'' noise (2, Funny)

interkin3tic (1469267) | more than 4 years ago | (#29275781)

Yeah, well I copyrighted "get offa my lawn" so you owe me like a million dollars.

Copyright laughter (1)

mollog (841386) | more than 4 years ago | (#29275923)

Or copyrighting laugh tracks. Copyright the sound of splashing water, falling rain.

Terrance and Phillip copyrighting their farts. Harley tried to sue another maker over the sound of the exhaust system, or something like that.

Re:I will copyright the ''boom'' noise (1)

Rip Dick (1207150) | more than 4 years ago | (#29275953)

Back in my day, we didn't have lawns! Just the wild forest/pasture outside of the entrance to your cave, that you hunted on with other members of your patriarchal clan.

Re:I will copyright the ''boom'' noise (1)

Abreu (173023) | more than 4 years ago | (#29276047)

Yeah, well I copyrighted "get offa my lawn" so you owe me like a million dollars.

Actually, Clint Eastwood [wikipedia.org] would like a word with you... Or my buddy McGrew [slashdot.org]

Might sound nuts, but has a sound legal basis (4, Interesting)

langelgjm (860756) | more than 4 years ago | (#29275565)

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...

Re:Might sound nuts, but has a sound legal basis (1)

flaming error (1041742) | more than 4 years ago | (#29275695)

> 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.

Re:Might sound nuts, but has a sound legal basis (2, Funny)

oldspewey (1303305) | more than 4 years ago | (#29276013)

I'm going to soundmark the use of the phrase "and to your left you can see ..." when used during a guided tour setting. To your right is fine, but point out something to your left and your ass is mine.

Re:Might sound nuts, but has a sound legal basis (1)

easyTree (1042254) | more than 4 years ago | (#29276245)

The phrase 'your ass is mine' belongs to me; now *your ass is mine*.

Generic sounds, words can not be trademarked (4, Insightful)

spun (1352) | more than 4 years ago | (#29275745)

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.

Re:Generic sounds, words can not be trademarked (1)

langelgjm (860756) | more than 4 years ago | (#29275821)

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 well)

Re:Generic sounds, words can not be trademarked (1)

Hognoxious (631665) | more than 4 years ago | (#29276115)

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.

Re:Generic sounds, words can not be trademarked (1)

langelgjm (860756) | more than 4 years ago | (#29276215)

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.

Re:Generic sounds, words can not be trademarked (0)

gnick (1211984) | more than 4 years ago | (#29275857)

Mighty strong words from somebody using a sig containing obviously copyrighted material. Oh, wait...

Seriously though. If this company was using a carefully crafted quacking noise to attract customers, I could see possibly protecting it. But FTA it seems like they're just trying to trademark the idea of having their customers use duck-calls to quack during the tour. If I'm on a tour, or just driving around, and I feel like quacking, I'll quack goddammit. If it's an organized event using calls that have been passed around, so be it - I'll quack with the group. How in the hell can you trademark having a group of people quack?!?

Re:Generic sounds, words can not be trademarked (1)

dissy (172727) | more than 4 years ago | (#29276217)

How in the hell can you trademark having a group of people quack?!?

I'd take the question one step further.

The company claiming trademark has already openly admitted that the people they are suing are not the ones that made the quack sound.

If I purchase a duck call, which I can at most any sports store or department store including Walmart, where the specific and Only function of that duck call is to produce a duck sound, then me purchasing it and using it as intended can not possibly open me up to litigation. I didn't make the thing!!
They need to be pressing suit against the company that made the duck call, at which point prior art will toss the case aside (I didn't check, but I'd bet money the company making the duck calls has been doing so and can show papers of incorporation dated LONG before this patent was granted.)

If you have a patent over using a spoon to put food in your mouth, your beef (sorry) is with the people who MAKE SPOONS, not the ones buying them at the store whom are given the impression they are legal (else why sell them at Walmart)

Re:Generic sounds, words can not be trademarked (1)

amicusNYCL (1538833) | more than 4 years ago | (#29275869)

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.

Re:Generic sounds, words can not be trademarked (1)

sconeu (64226) | more than 4 years ago | (#29276025)

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

Re:Generic sounds, words can not be trademarked (1)

amicusNYCL (1538833) | more than 4 years ago | (#29276165)

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.

Re:Generic sounds, words can not be trademarked (0)

Anonymous Coward | more than 4 years ago | (#29276031)

The difference is that movies and lion sounds don't automatically go together, so it's trademarkable much like having a lion logo.

In this case ducks calls and duck calls automatically go together. A film studio would struggle to trademark the sound of a clapper board, or of a film spool, similarly duck touring companies shouldn't be able to trademark duck calls, unless it is only 1 particular, unique call they trademark, then it's not an issue, a rival could use a different call or a double call, or similar.

Re:Generic sounds, words can not be trademarked (1)

Deadstick (535032) | more than 4 years ago | (#29275971)

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

Re:Generic sounds, words can not be trademarked (1)

blackraven14250 (902843) | more than 4 years ago | (#29276339)

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.

Re:Generic sounds, words can not be trademarked (0)

Anonymous Coward | more than 4 years ago | (#29275999)

INAL but, I think Ducks have prior art, and there might be an argument for nature being open source.

Re:Generic sounds, words can not be trademarked (1)

meerling (1487879) | more than 4 years ago | (#29276093)

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 face it, they just trademarked a bunch of people making random noise with duck calls. Not audibly different from any other group of random people with duck calls. Have you ever been to an Oregon Ducks Football game? (University of Oregon) They've been using duck calls at the games since Walt Disney was still alive and gave them permission to use Donald Duck as their mascot.

Re:Generic sounds, words can not be trademarked (1)

furby076 (1461805) | more than 4 years ago | (#29276285)

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]

Maybe *specific, unique* sounds (5, Insightful)

JSBiff (87824) | more than 4 years ago | (#29275747)

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.

Re:Maybe *specific, unique* sounds (1)

langelgjm (860756) | more than 4 years ago | (#29275875)

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 issue is whether there is an association between the mark and the company or product. It's not like them defending the trademark forces hunters/biologists to stop using duck calls. It would just enjoin the other tour company from using a similar duck call (where "similar" will have to be decided by the facts of the case).

Re:Maybe *specific, unique* sounds (0)

Anonymous Coward | more than 4 years ago | (#29276077)

The description is pretty specific actually for NBC:

http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=72349496 [uspto.gov]

It's in all caps, something tells me if I paste it /.'s lameness filter will flag something...

Re:Maybe *specific, unique* sounds (1)

langelgjm (860756) | more than 4 years ago | (#29276129)

That's pretty much what I thought - they give the notes, including octave. But they don't specify any particular instrument, or give any listing of instruments. Perhaps there's a sound recording that accompanies the filing, but it's not mentioned there.

Re:Maybe *specific, unique* sounds (1)

dyingtolive (1393037) | more than 4 years ago | (#29275977)

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.

Re:Maybe *specific, unique* sounds (1)

meerling (1487879) | more than 4 years ago | (#29276167)

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:Maybe *specific, unique* sounds (2, Informative)

AndersOSU (873247) | more than 4 years ago | (#29276181)

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:Maybe *specific, unique* sounds (1)

SnarfQuest (469614) | more than 4 years ago | (#29276197)

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

Re:Maybe *specific, unique* sounds (1)

easyTree (1042254) | more than 4 years ago | (#29276311)

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.

Today's thread about the MAFIAA is that way ---------->

Re:Might sound nuts, but has a sound legal basis (1)

Ogive17 (691899) | more than 4 years ago | (#29275765)

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?

Re:Might sound nuts, but has a sound legal basis (1)

flaming error (1041742) | more than 4 years ago | (#29275845)

> 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.

Re:Might sound nuts, but has a sound legal basis (4, Insightful)

mea37 (1201159) | more than 4 years ago | (#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.

Re:Might sound nuts, but has a sound legal basis (1)

AndersOSU (873247) | more than 4 years ago | (#29276309)

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 the same. One company thinks that by handing out duck calls it is distinguishing itself. You don't go on a duck boat tour to hear duck calls, you go on duck boat tours to see the tour.

So, who do you think the IP abuser is?

The company that registered the mark, or the one that's misappropriating it?

Re:Might sound nuts, but has a sound legal basis (0)

Anonymous Coward | more than 4 years ago | (#29276315)

I think if you're walking down the street and you see a tour company where the tourists are making the quacking sounds, you'd think "Ride the Ducks", in your head. If the company is actually Bay Quackers, then Bay has benefited from the sound that Ride the Ducks had made famous. The argument is pretty characteristic of why trademarks exist, whether it's in print or if it's a "sound mark".

Re:Might sound nuts, but has a sound legal basis (0)

Anonymous Coward | more than 4 years ago | (#29276351)

I think I'm going to have to keep that link sitting around for when numbnuts start going off about the 9th Circuit getting overturned all the time.

In this case their decision was quite clearly based on the letter of the law (15 U.S.C. ss 1127, defines trademarks as including "any word, name, symbol, or device, or any combination thereof", color being none of the above) and the overturn was apparently based on random whim, keeping in mind that even now trademarks are rendered by the USPTO in black and white. [uspto.gov]

It's also handy to keep around for idiots who think the supreme court exists solely to hear Constitutional challenges to laws.

Apologies in advance (2, Funny)

Anonymous Coward | more than 4 years ago | (#29275567)

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

Re:Apologies in advance (1, Informative)

SilverEyes (822768) | more than 4 years ago | (#29275835)

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].

Correct me if I'm wrong... (1)

julesh (229690) | more than 4 years ago | (#29275569)

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...?

Tetris v. BioSocia (1)

tepples (727027) | more than 4 years ago | (#29275619)

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.

Re:Correct me if I'm wrong... (4, Informative)

langelgjm (860756) | more than 4 years ago | (#29275651)

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:Correct me if I'm wrong... (0)

Anonymous Coward | more than 4 years ago | (#29276303)

They are functional in that they don't echo, and allow them to steer clear of noise ordinances.

If I were smarter (0)

Anonymous Coward | more than 4 years ago | (#29275581)

I'd be an IP attorney and I'd be rich! Then I could retire and sit around and jack off to internet porn.Instead, I'm an out of work programmer who's sitting at home jacking off to internet porn while posting as an AC on Slashdot.

My life would be so much better if I were an IP lawyer!

It seems legit (4, Insightful)

furby076 (1461805) | more than 4 years ago | (#29275585)

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]

Re:It seems legit (1)

bzzfzz (1542813) | more than 4 years ago | (#29275871)

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 that the suit may encounter is that trademarks by definition may have no functional purpose since otherwise patent law, with its much more stringent requirements (novelty, duration limits, registration requirements, etc), would apply. One of the landmark cases in trademark law was the Owens-Corning lawsuit over pink fiberglass, where Owens-Corning prevailed in major part because the pink coloration serves no functional purpose. The duck sounds at issue here are functional: they serve to entertain. Without the duck sounds the entertainment event loses some of its essential character, making it clear that the sounds are not mere identification.

Re:It seems legit (1)

furby076 (1461805) | more than 4 years ago | (#29276037)

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 group. I live in center city philly - whenever I hear it I know they are nearby. I also want to pitch a pile of horse crap at them but hey :)

------
Scuba [youtube.com]

Re:It seems legit (1)

bzzfzz (1542813) | more than 4 years ago | (#29276169)

It's funny. It makes people laugh. Since the product being provided is entertainment, the funny bits are the sine qua non.

Re:It seems legit (1)

furby076 (1461805) | more than 4 years ago | (#29276221)

Damn you philadelphia public schools for getting rid of latin!

Thank you Google for translating Latin!

----------------
Scuba [youtube.com]

Re:It seems legit (3, Interesting)

radtea (464814) | more than 4 years ago | (#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."

WTF (1)

OrangeMonkey11 (1553753) | more than 4 years ago | (#29275615)

So is this Ride the Duck company manufacture their own duck call since the hold a patent on the sound mark? If Ride the Duck just bought some generic ass duck call devices and uses it then i think they pretty don't have much of a case or a patent on the sound mark.

Also this kind of shit just make jokes out of the court system

Re:WTF (1)

gnick (1211984) | more than 4 years ago | (#29275929)

FTA, Ride the Duck uses Wacky Quackers (apparently proprietary). The calls that Bay Quackers uses are apparently offensively similar.

And yes, this does make a joke out of our court system.

Almost makes sense... (4, Funny)

MiniMike (234881) | more than 4 years ago | (#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.

Re:Almost makes sense... (1)

sjames (1099) | more than 4 years ago | (#29276121)

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?

Exactly the same?? (1)

realsilly (186931) | more than 4 years ago | (#29275711)

Shouldn't it only be the exact same sound? Otherwise any hunter out in the wood, who is duck hunting will owe this company money. I cannot fathom that this one would be acceptable. If one person makes a duck sound that is drawn out versus another that makes it sound short, how can you patent one generic duck call for all of those variations. I would say that NBC has their chimes and they've made that a distinctive trade mark and I'm not sure how elaborate that trademark would be. The Aflac sound is distinctly saying Aflac. But a duck call is too generic imho.

Apple (record label) vs Apple (toys for ponces) (1)

Hognoxious (631665) | more than 4 years ago | (#29276359)

Shouldn't it only be the exact same sound?

No.

Otherwise any hunter out in the wood, who is duck hunting will owe this company money.

No they won't.

Different industry.

This is why Microsoft can trademark "Windows" when referring to operating systems, but not when referring to transparent sections of wall.

Quack (1)

geekoid (135745) | more than 4 years ago | (#29275713)

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.

What's the problem? (1, Insightful)

ceswiedler (165311) | more than 4 years ago | (#29275731)

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.

Re:What's the problem? (1)

Attila Dimedici (1036002) | more than 4 years ago | (#29275813)

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.

One Hand Clapping (1)

hardburn (141468) | more than 4 years ago | (#29275737)

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].

duck boats... (0)

Anonymous Coward | more than 4 years ago | (#29275749)

Here [wikipedia.org] is the "duck boat" used by these tour companies. It's an amphibious vehicle that was used in WWII for the D-Day landing. The boats are kind of cool. Quacking while riding in them, not so much.

Re:duck boats... (1)

gnick (1211984) | more than 4 years ago | (#29276071)

You obviously just don't see the humorous side of the D-Day landing.

Oh wait... Oh shit... Really? Tourists quacking on board? God, that's at least a little awful...

Was making a fresh, entertaining tour bus/boat just too damned difficult? Or was just displaying these tragic relics of our history as a race just not profitable?

Man, this story just got a little less entertaining.

Trademark as an anti-competitive tool (2, Interesting)

Adrian Lopez (2615) | more than 4 years ago | (#29275799)

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.

They could just pay the lawsuit... (5, Funny)

clone53421 (1310749) | more than 4 years ago | (#29275803)

An MP3 of coins jingling should be adequate.

Re:They could just pay the lawsuit... (1)

CopaceticOpus (965603) | more than 4 years ago | (#29276251)

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.

Re:They could just pay the lawsuit... (1)

clone53421 (1310749) | more than 4 years ago | (#29276361)

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!"

The legal argument should fail for this (4, Insightful)

icewalker (462991) | more than 4 years ago | (#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:The legal argument should fail for this (2, Interesting)

langelgjm (860756) | more than 4 years ago | (#29275965)

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 (2, Interesting)

amicusNYCL (1538833) | more than 4 years ago | (#29276085)

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:The legal argument should fail for this (1)

spire3661 (1038968) | more than 4 years ago | (#29276371)

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

What next?!? (3, Insightful)

Locke2005 (849178) | more than 4 years ago | (#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!"

This will not end well (4, Funny)

Locke2005 (849178) | more than 4 years ago | (#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!"

I own the TM on this story (1)

Golddess (1361003) | more than 4 years ago | (#29275985)

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.

Duck Call Manufactures Pay the Price? (0)

Anonymous Coward | more than 4 years ago | (#29276091)

I wonder what the manufacturers of the Duck Calls have to say about this. How can anyone dictate where and when these products are quacked???

A soundmark is there to .. (1)

roguegramma (982660) | more than 4 years ago | (#29276179)

Like a trademark, a soundmark is there to identify a service or brand.

When the sound isn't used to identify a service or brand, then it is still ok to use the sound.

So you can still say "You're fired" even when Trump holds a trademark on the phrase and the same holds for duck-quacking devices which by the way have been around much longer.

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