The Mercury News reports that a Philadelphia judge has ruled that a duck’s quack cannot be protected by trade mark law. The judgment arose out of a dispute between two companies that run “duck tours”, amphibious tours which travel both by road and on rivers. Ride the Ducks, which began operating a year before rival Super Ducks, introduced the “Wacky Quacker”, a whistle which produces a duck sound and encouraged its customers to use the whistle and shout “quack! quack!” to passing pedestrians. Ride the Ducks obtained trade mark protection for “a quacking noise made by tour guides and tour participants by use of duck call devices". However, Super Ducks began using the “Kwacky Kwacker”, an identical whistle which produced a duck noise. District Judge Legrome D. Davis ruled that the duck noise is too familiar to be either inherently distinctive or to have acquired distinctiveness.
The IPKat says that, following the ECJ’s decision in Shieldmark v Kist, not only would a quack be likely to lack distinctiveness, but also it would be impossible to graphically represent.
More ducks here, here, here, here and here