- The Washington Times - Tuesday, April 5, 2005

PHILADELPHIA - Bitter competition between two duck tour companies has forced a federal judge to rule on this important legal question: Can you trademark a quack?

The dispute involves Ride the Ducks and Super Ducks, two outfits offering similar guided tours of Philadelphia in amphibious craft that lumber through the city’s historic district, then plunge into the Delaware River for a floating tour of the waterfront.

Ride the Ducks is the bigger and more established operation. It began driving its vehicles in Philadelphia in 2003, having previously introduced them in Boston, Seattle, Baltimore, Atlanta and Branson, Mo.

Super Ducks started a year later — ruffling the feathers of the older tour company, and triggering a legal skirmish over whether the Super Ducks boats would be allowed to use a boat ramp that Ride the Ducks had spent $500,000 to build.

Ride the Ducks succeeded in getting its competitor banished to a different ramp, then went back to court claiming trademark infringement.

The new fight revolved around one of Ride the Ducks’ most prized gimmicks: The Wacky Quacker.

Since 1998, the noisemakers have been a central part of the Ride the Ducks act. During each tour, patrons are encouraged to blow into the whistles, which make a noise like a duck, and cheerfully call out, “quack, quack” to passing pedestrians.

The quackers were such a big hit, Ride the Ducks obtained a trademark giving it the exclusive right to use “a quacking noise made by tour guides and tour participants by use of duck call devices” during tours of land and water by amphibious vehicles.

Super Ducks must have liked the idea, too. When it opened in 2004, it began giving passengers a nearly identical noisemaker called a Kwacky Kwacker. The company has since stopped using that name.

The similarity was too much for Ride the Ducks, which filed a lawsuit in federal court.

After hearing both noisemakers blown After hearing both noisemakers blown in his courtroom, and mulling it over for a few months, U.S. District Judge Legrome D. Davis ruled that both companies can keep quacking.

The Wacky Quacker, he said in an opinion filed March 21, was not “inherently distinctive” enough to qualify for trademark protection, and quacking itself is too familiar of a noise to patent.

“Plaintiffs have presented no evidence that a person apprehending a quacking noise on the streets of Philadelphia would reflexively think of the services provided by Ride the Ducks,” Judge Davis wrote.

Ride the Ducks attorney Michael H. Gaier said the company, recently purchased by Herschend Family Entertainment, hadn’t decided whether to appeal. “I guess imitation is the sincerest form of flattery,” he said.

Super Ducks lawyer Morris P. Hershman denied that Super Ducks was trying to rip off its competitor’s ideas.

“We really go out of our way to distinguish ourselves from them,” Mr. Hershman said. “If there was any confusion between their service and ours, it had nothing to do with the duck call.”

Though the routes their amphibious vehicles take diverge, both Ride the Ducks and Super Ducks offer a tour of various historical sites in the Old City section of Philadelphia, such as the Liberty Bell and the United States Mint.

The court pointed out that the vehicles operated by the two tour operators, while similar, are physically different in some key respects. Ride the Ducks’ vehicles are converted military vehicles known as DUKWs, which were built in the 1940s and used in World War II. Super Ducks vehicles are nonmilitary vehicles that the company describes as “hydraterra vehicles.”

Neither company can claim to have come up with the idea of duck boat tours. That honor goes to Original Wisconsin Ducks, which has been operating amphibious tours in World War II-era craft in the Wisconsin Dells since 1946.

It does not use quackers.

Washington also has a duck tours operation. DC Ducks dispatches converted DUKWs on tours around the Mall and into the Potomac River.

Beyond patent issues, retrofitted DUKWs have had safety problems.

In 1999, one of the amphibious tour craft sank in a lake near Hot Springs, Ark., drowning 13 persons. The National Transportation Safety Board blamed the accident on poor maintenance and unsafe design. The boat sank in 60 feet of water within a minute after a rubber boat guarding its drive shaft gave out, sending water into its hull.

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