Legal Fight Between Amphibious Tour Guides Is No Quacking Matter.

SAN FRANCISCO, May 19, 2009 -- Tour guide companies using amphibious vehicles and duck calls took their trademark dispute to the U.S. District Court for the Northern District of California.

Ride The Ducks International LLC offers guided tours of cities to tourists while transporting them in amphibious vehicles, sometimes referred to as ducks. Duck calls referred to as a WACKY QUACKER are distributed to customers to encourage their participation while on the tour.

Ride The Ducks began offering guided tours utilizing amphibious craft in Branson, Missouri in 1977 and now operates at least 75 vehicles in a multitude of cities including San Francisco, Baltimore, Philadelphia, and Seattle.

Ride The Ducks initiated a trademark infringement lawsuit in response to amphibious tours offered in San Francisco by defendant Bay Quackers, LLC who also utilize ducks calls during their tours.

A sound can serve as a trademark, so long as the consuming public associates the sound as an identifier of the source for goods or services. This association is known as secondary meaning.

The United States Patent & Trademark Office (USPTO) conferred registered trademark status to Ride The Ducks' duck quack noise in connection with tour guides on June 23, 1998. Ride The Ducks claims a date of first use of August 22, 1996.

Typically, the first party to use a trademark has the superior claim of ownership and may prohibit others subsequently from using a confusingly similar mark. Bay Quackers LLC allegedly started offering amphibious tours in November, 2005.

The relief requested includes the maximum allowable damages, attorneys fees and an injunction ordering Bay Quackers LLC to stop using devices that make quacking noises in connection with guide services.

The Lanham Act allows a registered trademark owner to recover the defendants' profits and any damages sustained by the plaintiff if trademark infringement is proven. The court may enter judgment for any sum above the amount found as actual damages, up to three times. When a court finds a defendant intentionally counterfeited a registered trademark, the court must, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever is greater, together with a reasonable attorney’s fee unless the Plaintiff elects for statutory damages up to $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed.

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