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Boston Duck Tours, LP v. Super Duck Tours, LLC

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Before Lipez and Howard, Circuit Judges, and DiClerico, Jr., Senior District Judge. *fn1

In this trademark infringement dispute, defendant-appellant Super Duck Tours (“Super Duck”) appeals a preliminary injunction granted in favor of plaintiff-appellee Boston Duck Tours (“Boston Duck”). Asserting that the phrase “duck tour” and the image of a duck splashing in water are generic, and therefore that there is no likelihood of confusion between Boston Duck’s marks and Super Duck’s marks, appellant requests that we dissolve the injunction requiring the alteration of its trade name and logo. Appellee has also cross-appealed the order of the district court, arguing that the court committed clear error by not enjoining Super Duck from using the term “duck” in its trade name.

After carefully reviewing the record in this dispute, we conclude 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. Consequently, the court erred in issuing a preliminary injunction, which prevented Super Duck from using the phrase “duck tour” in its own trade name. The district court also clearly erred in finding a likelihood of confusion between Super Duck’s and Boston Duck’s design marks. Therefore, the court also should not have issued an injunction preventing Super Duck from using its design mark. We dismiss Boston Duck’s cross-appeal as moot given our resolution of the other issues.

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