February 3- 9, 2005

political notebook

Quack Attack

by Mary F. Patel

The Ducks are fighting in federal court about the qualities of their quacks. Ride the Ducks of Philadelphia and Ozark Scenic Tours sued Duck Boat Tours, Inc. — aka Super Ducks — claiming that Super Ducks cannot use quackers for tourists who take their city tours.

Both companies give their customers plastic quackers to blow on and make delightfully amusing (or annoying) noises while riding their Ducks — amphibious vehicles that take tourists on a route through Center City and onto the Delaware River.

In court papers filed on Dec. 2, 2004, Ride the Ducks, owned by Herschend Family Entertainment, asked for an immediate injunction against Super Ducks, owned by Alfred Krawitz. The suit claims trademark infringement, unfair competition, defamation and disparagement. The company alleges that it "invested significant sums of money, research and time and effort toward perfecting its product, including the customers' enjoyment and education of the tour itself."

It also maintains Ozark Scenic Tours has registered trademarks for duck calls and toy noisemakers to be used by tour guides and tourists. Ozark licensed the trademark to Ride the Ducks and calls them Wacky Quackers. The suit says that Super Ducks gives its customers quackers with a similar sound and calls them Kwacky Kwackers.

In its response, Super Ducks calls the allegations "baseless" and maintains it has neither damaged Ride the Ducks' "goodwill and reputation" nor caused the company to suffer financial loss. Super Ducks says that its Kwacky Kwackers have a distinctive sound.

Michael H. Gaier, who represents Ride the Ducks, said Super Ducks cannot use duck quackers because they are a sensory trademark owned by his clients.

Ride the Ducks asked that Super Ducks cease all use of quackers and pay for all its losses and punitive damages.

"They can use duck whistles at a 76ers game or on the ice-skating rink, but they can't use them on amphibious vehicles," Gaier said.

Morris P. Hershman, attorney for Super Ducks, said that Ride the Ducks does not have a patent on its quackers, only a trademark that does not give it exclusivity. He added that Super Ducks no longer calls its quackers Kwacky Kwackers.

At the Jan. 4 injunction hearing, Gaier said that various witnesses from both sides demonstrated to U.S. District Judge Legrome D. Davis the sound of both quackers by blowing them in the courtroom.

"There is no difference," said Gaier. "They claim that their quackers sound different, but they do not."

Hershman said they were currently waiting for Davis to rule on the injunction of the quackers.

Ride the Ducks is also suing former employee Joseph Saeger, who now works for Super Ducks, alleging that Saeger possesses confidential or privileged information about them and that he signed a confidentiality and noncompete agreement. They claim Saeger told Super Ducks passengers that the types of vehicles Ride the Ducks uses are similar to one that sank "like a lead weight" in a Branson, Mo., lake killing 13 people.

Super Ducks says that Saeger is an independent contractor and possessed no confidential information about Ride the Ducks. In court papers defending against the defamation claims, Super Ducks cited numerous examples of how Ride the Ducks uses unsafe vehicles.

In reference to Saeger, Hershman said he only worked for Ride the Ducks for two months and that he has no confidential information. He would not comment on the safety issue.

As for Saeger, Gaier said, "That's an employee issue and is separate," adding that the allegations from Super Ducks that the Ride the Ducks vehicles are unsafe are untrue.

Howard Bobb, Saeger's attorney, declined comment pending Davis' ruling.

Currently, both Ducks are out of operation for the season. Krawitz said he plans to resume running the Super Ducks in March.

Gaier said that they would be happy if Super Ducks would just stop using quackers.

Krawitz responded, "They do not own a patent for toy duck-call noisemakers, and they cannot bully the competition from using them. They should concern themselves more with the safety issues of their vintage boats."

This is not the first time Ride the Ducks and Super Ducks have been at odds.

Last July, there was a hearing in federal court over the ramp at Penn's Landing that Ride the Ducks built and was using to launch into the river. Super Ducks wanted access to the ramp, too, citing public domain. Super Ducks lost that round but appealed to the 3rd Circuit and are no longer interested in using that ramp.