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by Mike Masnick

Fri, Aug 28th 2009 6:44pm

Filed Under:
amphibious trucks, kazoos, quacking, tourism, trademark

Companies:
bay quackers, ride the ducks

Permalink.

Trademark Lawsuit For Using Kazoos To Quack Like A Duck

from the quack-quack dept

When this article in the ABA Journal started off by noting (accurately!) that the following story sounds like typical late-night fodder that makes lawyers look bad for filing frivolous lawsuits -- but then said "but the suit is anything but silly" -- I expected an article that would explain convincingly why a trademark lawsuit between two tourist tour operators that have passengers use kazoos to quack like a duck was not silly. But, I'm left scratching my head. I found the article via Eric Goldman, who notes that "I can't imagine this lawsuit has a good ROI."

Here's the basic story. Apparently, there are some tour operations out there that involve amphibious truck/boats, that take tourists around different places both on land and in water. One company, Ride the Ducks, does this in various areas around the country, and has trademarked the sound of kazoos being used to quack like a duck -- which it asks passengers to play as the truck goes from land to water. Now it turns out, right nearby where I am, in San Francisco, there's a tour called Bay Quackers, that does something similar, also involving quacking kazoos. Ride the Ducks isn't happy and has sued Bay Quackers, saying that the specific quack of the kazoo is trademarked.

My first question is why Bay Quackers just doesn't get different kazoos. Well, actually, my first question is a slightly unprintable question about why tourists might ride amphibious boat/trucks while using kazoos to sound like ducks... but I figure that's a tangent. Either way, it's difficult to see what benefit there really is to this lawsuit, other than Ride the Ducks being pissed off that someone else is using their idea. But ideas aren't protectable, and competition is a good thing. So, we're left with a silly lawsuit about quacking kazoos that does, still, seem pretty frivolous.

60 Comments | Leave a Comment

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Reader Comments (rss)

(Flattened / Threaded)

GeneralEmergency (profile), Aug 28th, 2009 @ 6:56pm

Time to update an old saw...
"If it quacks like a Duck...Sue the shit out of it".

Where are people this stipid and petty finding lawyers that are this stupid and petty?

Oooops. I think I just answered my own question.

[ reply to this | link to this | view in thread ]
Bob, Aug 28th, 2009 @ 7:08pm

Somewhere in here there's a ripe Ducktails Joke. The punchline involves something about Scrooge McDuck drinking Glenlivet.

I'll work on it.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 28th, 2009 @ 7:42pm

just google Duck Boat tours. Quacking doesn't seem like a very original concept...

[ reply to this | link to this | view in thread ]
STJ, Aug 28th, 2009 @ 7:45pm

So, how do I go about patenting putting a piece of meat between 2 pieces of bread. Then collecting money from some big name fast food joints?

[ reply to this | link to this | view in thread ]
Clinton W. Carter, Aug 28th, 2009 @ 7:50pm

Quack like a Douche
If you were EVER curious...

Now you have a solid and verifiable reason to NEVER EVEN THINK ABOUT going on one of those douchbag tours. You have to be old and half-retarded to get on one of those things and quack like a fucking duck.

Get a life, show some spirit, find a clue, and if you *have* to go on a tour - please, for the love of God and all that is holy - stay off the "Quack like a Douche" Tour.

[ reply to this | link to this | view in thread ]
wnyght, Aug 28th, 2009 @ 7:51pm

Re: Time to update an old saw...
"If it quacks like a Duck...Sue the shit out of it".

does this apply to hunters that use duck calls?

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 28th, 2009 @ 8:01pm

Why ducks do not fly upside down
they would quack up

[ reply to this | link to this | view in thread ]
tony, Aug 28th, 2009 @ 8:27pm

"Why ducks do not fly upside down"
BOOOOOOOO! *hangs head* But sadly, I laughed...

[ reply to this | link to this | view in thread ]
William C Bonner, Aug 28th, 2009 @ 9:23pm

I've taken one of those tours when I had relatives visiting. If you get into the spirit of talking back to the tour guide, and quacking at peopel on the tour, and anyone you happen to drive by, it can be fun.

Of course they charge and extra $5 or so for the noise makers, which I don't remember thinking was worth it.

Trademarking quacking like a duck is bad, and I hope they lose their suit, or worse, attract Disney's attention.

This is along the lines of Texas A&M suing any football team for referring to their fans as the 12th man.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 28th, 2009 @ 10:39pm

I've been on a "duck tour" at some point when some relatives were visiting. It didn't involve kazoos and was actually rather fun. I don't think kazoos would have really improved the experience, and depending on whether little kids got to use them I could easily imagine them making it substantially worse.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 28th, 2009 @ 11:02pm

Re: Re: Time to update an old saw...
What about hunters that go after sitting ducks.

[ reply to this | link to this | view in thread ]
Danica, Aug 29th, 2009 @ 12:40am

The day this kind of a tour sounds good to me, would someone please please please put a pillow over my head and smother me to end my suffering?

[ reply to this | link to this | view in thread ]
Dave, Aug 29th, 2009 @ 12:42am

Bang!
Could get shot......quick, get the legal team on board and in the firing line!

[ reply to this | link to this | view in thread ]
Danica, Aug 29th, 2009 @ 1:30am

On second thought, this lawsuit embarrasses me. How would you explain it to some woman living in a cave in Afghanistan. She's praying for food, clean drinking water, and she's also praying for her daughters to get an education without Taliban extremists throwing acid in their faces while they're walking home from school. This is the best we can do with all of our privileges as citizens of a first-world nation, suing each other for copyright infringement over the ownership rights to duck and kazoo sounds?

[ reply to this | link to this | view in thread ]
Ben (profile), Aug 29th, 2009 @ 6:24am

Sigh
What a stupid lawsuit. If they think the Kazoo use of a 2nd party is any way detrimental to their livelihood, then they're morons. Hey, they also so into the water, lets sue them for that too!

Lets hope Daffy, Donald & Toilet Duck all get involved in this. They have substantial claim on prior art.

[ reply to this | link to this | view in thread ]
shmengie (profile), Aug 29th, 2009 @ 6:56am

a duck walks into a pharmacy...
...so the duck says, "put it on my bill."

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 7:25am

nothing wrong with trademarking quacking
there's nothing wrong with trademarking the kazoo quacking during an amphibious tour, assuming no one else was using it in commerce first. it's completely non-functional, just as trademarks are supposed to be. it's very memorable, which makes it a high quality tool for branding. any skilled attorney could easily defeat that prior philadelphia decision by arguing the right things.

as for the stupidity of quacking, it's just like walmart. just because any of YOU hate walmart/quacking, doesn't mean everyone else does. if the company runs the stats and finds that ridership is up when they do quacking, who gives a shit whether any of you think kazoo quacking is stupid -- the market has spoken and you lost. you probably weren't going to go on the tour anyways.

nothing in any of the "arguments" above explain why this should not be trademarked... you're just spouting your usual anti-IP rhetoric. the only non-moronic commentary has been a single liner from goldman saying he can't imagine the ROI is good on this lawsuit. but without knowing the data on how well this quacking improves one's business, goldman's comment is a step up from speculation -- i only say a step up because goldman has extensive knowledge and training in IP law which allows him to form a much more valid and informed opinion than any of you random forumgoers.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 7:55am

shmengie - do you have permission to use the image of Alfred E. Newman?

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 8:07am

Re: a duck walks into a pharmacy...
The pharmicist pulls out a nail gun... *Kachunk!*

[ reply to this | link to this | view in thread ]
nullop, Aug 29th, 2009 @ 8:16am

Oiy
can u say dumb as a bag of hinges!

[ reply to this | link to this | view in thread ]
Anonymous Howard, Cowering, Aug 29th, 2009 @ 9:45am

Re: nothing wrong with trademarking quacking #17
"there's nothing wrong with trademarking the kazoo quacking during an amphibious tour"

There is no example of prior art? Did this tour company invent the kazoo? Or the amphibious tour?

Kazoo-playing is INTELLECTUAL property? What level of intellect does it take to make a buzzing noise?

Trademarks are "supposed to be" non-functional? Please cite references, this is the sort of thing that should be easily verifiable.

And, if you really want to be taken seriously, sign up for an account.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 1:57pm

*is alone in the fact that he thinks the tour sounds like a bit of a giggle*

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 3:47pm

Actually, Duckboat tours are actually quite interesting. They are generally amphibious vehicles, they tour the dock areas and "old town" in a city, and then roll into the water to give the people a water view of the city. Thus, they are ducks.

It's called marketing Mike, an amazing concept. Oh yeah, they don't have to give away their rides for free either.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 4:25pm

Re: Re: Time to update an old saw...
What does Ride the Ducks do during wabbit season, and not duck season, since I don't think rabbits really make much noise.

[ reply to this | link to this | view in thread ]
Thomas (profile), Aug 29th, 2009 @ 4:56pm

Their lawyers...
are a bunch of quacks.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 5:55pm

I'm going to patent breathing, then demand royalties from everyone who breathes.

Oh, and I'll trademark whistling, and sue people who whistle.

Money time.

[ reply to this | link to this | view in thread ]
vastrightwing, Aug 29th, 2009 @ 5:56pm

Patent communication via phonetics
I'm going to patent the idea that ideas can be communicated by making sounds I call "phonetics". By placing differing phonetic sounds together, one could communicate. I just need to write this up and find a good patent lawyer. Anyone?

[ reply to this | link to this | view in thread ]
Luci, Aug 29th, 2009 @ 6:32pm

Re: Re: Re: Time to update an old saw...
Actually, rabbits squeal a lot like rats. Especially when they're in pain.

[ reply to this | link to this | view in thread ]
wvhillbilly (profile), Aug 29th, 2009 @ 7:00pm

Kazoo quackers
It's nonsense like this that gives lawyers a bad reputation.

For stuff like this, they deserve to be made the butt of bad jokes.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 29th, 2009 @ 7:22pm

Re: Re: nothing wrong with trademarking quacking #17
your response is the perfect example of why attorneys and other people who are knowledgeable in these areas of law rarely come on to these sorts of blogs. trademarks are for specific fields of business. these guys are not claiming kazoo playing in general, and certainly not for non-commercial uses. they're claiming the trade dress of kazoo playing specifically on commercial amphibious tours, set up and encouraged by the tour guides. and they're not prohibiting some 6 year old from walking onto a competitors tour and pulling out a kazoo. they're trying to prohibit competitors from passing out kazoos to the entire tour. it's a commercial gimmick and it serves no function whatsoever besides branding. nothing in the lanham act says trademarks are limited only to words and designs -- in fact, colors, sounds, and even commercial possession of the flair you see in tgi fridays (and made fun of in office space) is trademarked. and there's nothing wrong with that.

as for my source on trademarks limited only to nonfunctional things, try the supreme court.

[ reply to this | link to this | view in thread ]
Rod Smith, Aug 29th, 2009 @ 11:06pm

Lovin' the Quack
Hey, if you've ever had to entertain a couple of kids on a holiday, the Duck boats are a ball. The kids love it, and you can just sit back and quack at all the uppity Europeans with their DSL cameras slung around their necks while they are snapping pics of 'historical importance' with their cell phones.

Riding those duck boats are a hoot, as long as you have a good attitude. Its a private business, making money providing a service people want.

If you don't like it, put on your Birkenstocks, grab your Fodor's guide and hump. I'll buy you a pint at the pub in the evening and we can have a lively conversation about the merits of entrepreneurship.

[ reply to this | link to this | view in thread ]
Keith Zuehlke (profile), Aug 30th, 2009 @ 3:35am

I don't know what I've been told.......
I can see it now........the National Guard, technically being the first Armed Service dating back to revolutionary Minutemen, will now trademark the act of chanting during the morning PT run. They'll sue the quack out of the Navy, Coast Guard, Army, and Marines.

The Air Force is safe, since they don't do squat. Except for the Paratroopers.

Then this Ride the Ducks group will swoop in and sue the Department of Defense as a whole due to the inclusion of the "Duck Walk" in the entrance physical.

[ reply to this | link to this | view in thread ]
Alexander K, Aug 30th, 2009 @ 4:10am

Smart!!!
This is cheap and great advertising (for both companies).

Genius, actually.

[ reply to this | link to this | view in thread ]
Paul Hobbs (profile), Aug 30th, 2009 @ 4:54am

The land of the Free to Sue thy Neighbour
In one of my comments to a different article I made the comment that Australia was way behind the US in the litigiousness department, but that we're slowly catching up. After reading about this suit I would say we are a lot further behind than I previously thought and we may never catch up. Thank God.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 30th, 2009 @ 6:27am

Re: nothing wrong with trademarking quacking
In my opinion.... You are a MORON

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 30th, 2009 @ 6:35am

Re: The land of the Free to Sue thy Neighbour
Did you know that someone can break into your home to rob you, fall and get hurt, then sue you for pain and suffering? you talk about f*cked up lawsuits...........

[ reply to this | link to this | view in thread ]
pangolin (profile), Aug 30th, 2009 @ 8:11am

Don't they HAVE to do something?
Assuming their trademark is valid - and at least they think it is - then don't they HAVE to defend it BY LAW? Don't they HAVE to sue?

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 30th, 2009 @ 10:33am

Re: Don't they HAVE to do something?
No

[ reply to this | link to this | view in thread ]
Marcus Carab (profile), Aug 30th, 2009 @ 10:41am

At first I was sure you were going to report that the RIAA got confused and thought Kazoo was a new version of Kazaa, and started suing.

[ reply to this | link to this | view in thread ]
Marcus Carab (profile), Aug 30th, 2009 @ 10:41am

Re: Don't they HAVE to do something?
No, they have to if they don't want to risk losing the trademark. But considering this trademark is ridiculous and unlikely to hold up in court (I hope, dear god) it seems like a waste of time.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 30th, 2009 @ 2:26pm

If this case ends up in a civil jury trial, I can just see the lawyers trying to give their opening arguments to the jury, with a straight face. How could you not keep from laughing? This would make a perfect Saturday Night Live skit.

[ reply to this | link to this | view in thread ]
Mike Masnick (profile), Aug 31st, 2009 @ 12:13am

Re: Re: Re: nothing wrong with trademarking quacking #17
your response is the perfect example of why attorneys and other people who are knowledgeable in these areas of law rarely come on to these sorts of blogs.

As someone who knows a bit about people who come to this blog, I'd say that you are wrong. Plenty of attorneys and people who are knowledgeable in these areas of law come to this blog all the time.

But, you know... why let facts get in the way?

[ reply to this | link to this | view in thread ]
Scott, Aug 31st, 2009 @ 12:21am

Re:
prior art

[ reply to this | link to this | view in thread ]
Scott, Aug 31st, 2009 @ 12:26am

Re: Re: nothing wrong with trademarking quacking #17
Learn the difference between IP (copyright) and trademark?

[ reply to this | link to this | view in thread ]
Scott, Aug 31st, 2009 @ 12:29am

Re:
Hard time with that...prior art again.

[ reply to this | link to this | view in thread ]
Scott, Aug 31st, 2009 @ 12:35am

Re: I don't know what I've been told.......
I'm pretty sure that cadences go back even further than U.S. history.

Plus, trademark involves a trade. To win, you have to prove that your trade has been inhibited. Soldiers, Marines, etc. call cadence to keep everyone together and help keep motivation and morale up.

Finally, you're very U.S.-centric aren't you? People all over the world use marching and running cadences, especially in the military.

Really poor example.

[ reply to this | link to this | view in thread ]
Scott, Aug 31st, 2009 @ 12:37am

Re:
Too bad Boston Legal is gone...I'd have loved to see Denny or Alan work this one. :)

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 31st, 2009 @ 2:49am

The trademark's real all right
Just had to look it up to be sure:

#75686528

"Description of Mark The mark consists of a quacking noise made by tour guides and tour participants by use of duck call devices throughout various portions of the tours"."

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 31st, 2009 @ 4:33am

Its been a long time since my IP law class but I do remember that trademarks are a consumer protection, not an IP protection. They are intended to protect against consumer confusion. We have duck tours in DC with quacking kazoos run by a different company. If i visited san francisco, i would assume both groups were simply duck tours not of a particular company. The "trademark" hasn't been sufficiently protected therefore neither company can claim it.

The company is being lazy and using trademark to stifle competition much like other company's use IP to stifle competition rather than innovate. IP is great when it encourages innovation; otherwise, its a hinder to advancing our tech economy.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 31st, 2009 @ 5:00am

OK so who the fuck allowed kazoo sounds to be trademarked in the first place?

[ reply to this | link to this | view in thread ]
Hephaestus (profile), Aug 31st, 2009 @ 7:12am

Re: Time to update an old saw...
This Quacks Me Up .... Yeah I know so obvious

[ reply to this | link to this | view in thread ]
Jason (profile), Aug 31st, 2009 @ 9:07am

Re: Time to update an old saw...
Kudos for the francophied spelling, "stipid."

[ reply to this | link to this | view in thread ]
Jason (profile), Aug 31st, 2009 @ 9:16am

Re:
Actually the 12th man thing is way more legit than this.

12th man was actually a registered trademark that they used on licensed apparel, and was legitimately recognized by fans as an Aggie t-shirt. It's based on aggie history(?folklore) that when they were for some reason only able to field 10 players (was it illness, war, I don't remember) someone actually came down from the stands and was added to the roster.

Obviously current rules would not allow this, but that's the story. The point is that Aggie enthusiam is in fact manaically stupid, and they are proud of it, and it really is specific to their history, and is more than just a rowdy crowd.

[ reply to this | link to this | view in thread ]
Jason (profile), Aug 31st, 2009 @ 9:17am

Re: Re: a duck walks into a pharmacy...
Waddle they think of next?

[ reply to this | link to this | view in thread ]
Jason (profile), Aug 31st, 2009 @ 9:23am

NOT an issue EVEN IF the trademark is legit
Bottom line, trademarks are NOT IP, they exist to protect customers from confusion within the same market. Sorry, but an amphibious tour in the bay area is nowhere near the same market as one in Georgia.

Or maybe it IS reasonable to think that people who get their jollies by quackin' a kazoo wouldn't know SF from GA, I don't know.

[ reply to this | link to this | view in thread ]
Anonymous Coward, Aug 31st, 2009 @ 10:18am

Re: Re: Re: Re: nothing wrong with trademarking quacking #17
55 comments in this thread alone... how many were IP attorneys, or even non-IP attorneys? why let facts get in the way?

[ reply to this | link to this | view in thread ]
Fiercedeity (profile), Aug 31st, 2009 @ 12:07pm

Re: Re: Re: Re: Re: nothing wrong with trademarking quacking #17
Right, because everyone who visits this blog leaves a comment... You shills are so out of touch with people it's rather amazing.

[ reply to this | link to this | view in thread ]
Derek Kerton (profile), Aug 31st, 2009 @ 5:02pm

Re: Time to update an old saw...
...but why not just sue them for "stealing" the concept of using an amphibious vehicle to do tours?

I mean, that idea should totally belong to one company and be completely locked down. How could they neglect this? Every idea should be locked down: that's how innovation and progress works, right?

[ reply to this | link to this | view in thread ]
Derek Kerton (profile), Aug 31st, 2009 @ 5:16pm

Re: Re: Re: Re: Re: nothing wrong with trademarking quacking #17
Yeah. Only IP attorneys should be able to comment on whether common sense would allow one company to lock down an idea as inane as kazoos on floating buses.

"55 comments in this thread alone...how many were IP attorneys, or even non-IP attorneys? why let facts get in the way?"

You guys have a monopoly on facts now? Damn, you're arrogant! Can't I counter, since I'm an economist, that only economists can say what's right or wrong, and nobody else has a valid opinion? No, because I'm not an ass.

Gosh! You'd like lawyers to decide what's right or wrong about everything, no matter how mundane. It just shows the kind of world we'd have if lawyers were in charge. Thankfully, instead we have congresspeople! ;-(

Gotta run. I need to call my lawyer to ask what I should eat for dinner. God forbid I should make any decision without counsel.

[ reply to this | link to this | view in thread ]
Derek Kerton (profile), Aug 31st, 2009 @ 5:22pm

Re: Re: I don't know what I've been told.......
Scott,

You're really making a habit of "debunking" people's posts that are just deliberate satire and exaggeration.

Get a sense of humor. You don't need to think it's funny (I don't), but at least you could detect that it's humor and lighten up.

[ reply to this | link to this | view in thread ]

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Trademark Lawsuit For Using Kazoos To Quack Like A Duck

from the quack-quack dept

Reader Comments (rss)

Time to update an old saw...

Quack like a Douche

Re: Time to update an old saw...

Why ducks do not fly upside down

"Why ducks do not fly upside down"

Re: Re: Time to update an old saw...

Bang!

Sigh

a duck walks into a pharmacy...

nothing wrong with trademarking quacking

Re: a duck walks into a pharmacy...

Oiy

Re: nothing wrong with trademarking quacking #17

Re: Re: Time to update an old saw...

Their lawyers...

Patent communication via phonetics

Re: Re: Re: Time to update an old saw...

Kazoo quackers

Re: Re: nothing wrong with trademarking quacking #17

Lovin' the Quack

I don't know what I've been told.......

Smart!!!

The land of the Free to Sue thy Neighbour

Re: nothing wrong with trademarking quacking

Re: The land of the Free to Sue thy Neighbour

Don't they HAVE to do something?

Re: Don't they HAVE to do something?

Re: Don't they HAVE to do something?

Re: Re: Re: nothing wrong with trademarking quacking #17

Re:

Re: Re: nothing wrong with trademarking quacking #17

Re:

Re: I don't know what I've been told.......

Re:

The trademark's real all right

Re: Time to update an old saw...

Re: Time to update an old saw...

Re:

Re: Re: a duck walks into a pharmacy...

NOT an issue EVEN IF the trademark is legit

Re: Re: Re: Re: nothing wrong with trademarking quacking #17

Re: Re: Re: Re: Re: nothing wrong with trademarking quacking #17

Re: Time to update an old saw...

Re: Re: Re: Re: Re: nothing wrong with trademarking quacking #17

Re: Re: I don't know what I've been told.......

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