CA1: Duck trademark fight leaves several annoyed

Boston Duck Tours v. Super Duck Tours, 07-2078. Did I mention that Intellectual Property is the one field of law I have no patience for.  It is all so sill and the people that practice it think that they are all that.  They are not.

Anyway, two rival amphibious tour companies are suing each other over the use of the word “duck.”  It concludes that “...the district court committed clear error by finding the phrase ‘duck tour’ nongeneric, and thereby according it too much weight in its likelihood of confusion analysis.”  Therefore, it concludes that there wasn’t that much of a likelihood of confusion.  Therefore, there should not have been an injunction issued. 

I guess there is some interesting stuff here.  The amphibious vehicles were WWII army vehicles called DUKWs (which is pronounced “Ducks.”) Apparently the greatest generation used them to invade France or something.  Today people from the flyover use them to gawk at crap.  I mean really, the only tourism worth admitting that you engage in is 1) ecotourism; 2) adventure tourism; 3) wine tastings. Maybe to be different you can say you go to Hedonism or Sandles or something, but that to inject someone with a subtext.  Anyway, some competitors use similar things, but they are custom-made vehicles. 

This opinion, coming at this time of the year, is written in only way that a clerk thinks that he is all that could write it.  Therefore, it contains everything you don’t know to know about trademarks.

Anyway, since this is all for the IP-people (who usually only read cases a day or so after they come out, which really isn’t acceptable conduct for most lawyers), if this kind of crap interests you, you can read it yourself.

I find it slightly interesting that a District Court judge sitting by designation concurs, probably understanding how much of a clerkish egotrip this opinion is, to says that most of the issues don’t matter in the first place, because the parties agree that Boston Duck Tours is a protected mark.