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.


Reader Comments (rss)

(Flattened / Threaded)

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    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.

     

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      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?

       

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        Anonymous Coward, Aug 28th, 2009 @ 11:02pm

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

        What about hunters that go after sitting ducks.

         

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        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.

         

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      Hephaestus (profile), Aug 31st, 2009 @ 7:12am

      Re: Time to update an old saw...

      This Quacks Me Up .... Yeah I know so obvious

       

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      Jason (profile), Aug 31st, 2009 @ 9:07am

      Re: Time to update an old saw...

      Kudos for the francophied spelling, "stipid."

       

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      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?

       

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    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.

     

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    Anonymous Coward, Aug 28th, 2009 @ 7:42pm

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

     

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    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?

     

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    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.

     

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    Anonymous Coward, Aug 28th, 2009 @ 8:01pm

    Why ducks do not fly upside down

    they would quack up

     

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    tony, Aug 28th, 2009 @ 8:27pm

    "Why ducks do not fly upside down"

    BOOOOOOOO! *hangs head* But sadly, I laughed...

     

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    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.

     

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      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.

       

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    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.

     

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    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?

     

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    Dave, Aug 29th, 2009 @ 12:42am

    Bang!

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

     

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    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?

     

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    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.

     

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    shmengie (profile), Aug 29th, 2009 @ 6:56am

    a duck walks into a pharmacy...

    ...so the duck says, "put it on my bill."

     

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    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.

     

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      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.

       

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        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.

         

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          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?

           

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            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?

             

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              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.

               

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              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.

               

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        Scott, Aug 31st, 2009 @ 12:26am

        Re: Re: nothing wrong with trademarking quacking #17

        Learn the difference between IP (copyright) and trademark?

         

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      Anonymous Coward, Aug 30th, 2009 @ 6:27am

      Re: nothing wrong with trademarking quacking

      In my opinion.... You are a MORON

       

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    Anonymous Coward, Aug 29th, 2009 @ 7:55am

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

     

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    nullop, Aug 29th, 2009 @ 8:16am

    Oiy

    can u say dumb as a bag of hinges!

     

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    Anonymous Coward, Aug 29th, 2009 @ 1:57pm

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

     

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    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.

     

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    Thomas (profile), Aug 29th, 2009 @ 4:56pm

    Their lawyers...

    are a bunch of quacks.

     

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    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.

     

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    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?

     

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    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.

     

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    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.

     

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    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.

     

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      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.

       

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        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.

         

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    Alexander K, Aug 30th, 2009 @ 4:10am

    Smart!!!

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

    Genius, actually.

     

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    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.

     

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      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...........

       

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    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?

     

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      Anonymous Coward, Aug 30th, 2009 @ 10:33am

      Re: Don't they HAVE to do something?

      No

       

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      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.

       

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    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.

     

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    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.

     

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    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"."

     

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    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.

     

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    Anonymous Coward, Aug 31st, 2009 @ 5:00am

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

     

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    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.

     

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