Friday, July 13, 2007

Boston Duck Tours Wins Injunction Against Competitor's Use of "DUCK TOURS"

In a Memorandum and Order issued today, the U.S. District Court for the District of Massachusetts has preliminarily enjoined Super Duck Tours, LLC, from using the term "DUCK TOURS" or a cartoon duck as a trademark or service mark in connection with sightseeing tour services in the Boston area. Boston Duck Tours, LP v. Super Duck Tours, LLC, Civil Action No. 07-11222-NMG (D. Mass. July 13, 2007). [TTABlog Update: REVERSED ON APPEAL (here), 87 USPQ2d 1385 (First. Cir. 2008)].

Plaintiff Boston Duck Tours identified "at least 30 instances of actual confusion involving customers who believed that the two companies were one and the same. *** [t]he litany of complaints alleged in the plaintiff's affidavits indicates that it is the confusing similarity of the parties' trademarks that is the problem here."

Defendant Super Duck Tours contended that "duck tours" is a generic term identifying a particular kind of amphibious sightseeing tour, but the court disagreed.

"Unlike the examples of 'wool felt,' and 'crab house' identified by the defendant, 'duck tours' does not clearly refer to a broad, general category of services. Rather, the word 'duck' is a play on the World War II amphibious vehicles, DUKWs, which were the distinctive predecessors of the vehicles used by the plaintiff, Boston Duck Tours. The tour itself does not involve ducks, as creatures, in any way. Contrary to what the name 'duck tours' may imply, the tour does not involve either duck watching or duck hunting."

The court declined to decide whether "duck tours" is descriptive, suggestive, or arbitrary, concluding that in any event the term "has acquired secondary meaning in the Boston area during the past 13 years."

Text Copyright John L. Welch 2007.


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