Trademarks get quacky…..
There is a business dispute with IP ramifications currently ongoing in the San Francisco area. This dispute centers on duck tours. Everyone here in Boston is probably familiar with the duck tours that use WWII-era amphibious vehicles (or replicas) to tour the city both on land and water. This is a pretty lucrative business that is common in large cities across the U.S. One of the leading companies in this field is Ride the Ducks, which operates these tours in many cities (for those wondering, Ride the Ducks does not own Boston Duck Tours but does partner with it). It seems that Ride the Ducks has recently come in the San Francisco market where it is looking to displace a local duck tour company, Bay Quackers. For all of the juicy, “business is war” details see: http://www.sfweekly.com/2008-11-12/news/clash-of-the-quackers/1.
Ride the Ducks has filed a trademark infringement suit against Bay Quackers regarding a sound mark it registered for the quacking sound its duck kazoos make (!). For those not familiar, tourists can obtain kazoos that make ducks sounds to use while on one of these tours. Sound marks are a type a trademark that work in roughly the same manner as normal trademarks. For example, NBC has received a trademark for not only its visual logo (the peacock) but also its auditory logo (the chimes). Similarly, AOL has sound marked “You’ve Got Mail”; the Harlem Globetrotters have a sound mark on the whistled version of “Sweet Georgia Brown”; and even the Pillsbury Doughboy’s giggle is protected. To obtain protection of sound marks, the USPTO requires first, that the mark be a source identifier, i.e. when a person hears the sound, she associates it with a company. Secondly, the sound must be distinct, a property that can be either inherent to the sound or acquired through usage. Lastly, the sound must not be functional. Sound marks are very rare, with the USPTO database showing only about one hundred and fifty live marks.
While a lawsuit over quacking kazoos seems inherently ridiculous, it has major business ramifications, especially for the alleged infringer, Bay Quackers. Should Ride the Ducks receive the injunction it has sought, it would receive a commercial advantage in a very competitive market. Such an advantage, regardless of how small it may be, could be enough to tip the scales.
IP, Massachusetts, News | Stephen Altieri | 
October 2, 2009 3:41 pm
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