Duck, Duck Lawsuit!

With a new competitor roiling the waters, the business of toting around boatloads of quack-happy tourists has turned downright cutthroat. And the legal fight’s not the half of it.

For the first time in my life, I wished I were wearing a fanny pack. But our half-assed disguises had to suffice. We were undercover, Cindy Brown and I: She was in a floral sundress, I had untucked my button-down shirt, and when we left her Copley Square office, she grabbed a pair of big fold-out maps of Boston to complete the look. On that hot June day, we were headed out as tourists—the sort that Brown has catered to for 13 years as the co-owner and general manager of the ubiquitous Boston Duck Tours.

Outside the Old South Meeting House, in a stretch of downtown thick with sightseers, we came upon a tiny kiosk where a scruffy twenty something was selling tickets for something called Super Duck Tours, an amphibious-tour company new to town, and one that bore more than a passing resemblance to Brown’s business. Like the original, the new tour traveled across both land and water (the Super Ducks visit Boston Harbor, while the Boston Ducks confine themselves to the gentler Charles), boasted a splashing-duck cartoon logo, and encouraged passengers to quack at the pedestrians they passed.

The Super Duck salesman was courting an elderly couple when Brown cut in.

“Hi, we want to get tickets for duck tours,” she said.

“Super Duck Tours?” replied the ticket guy.

“Boston Duck Tours.”

“Boston Duck Tours?” he said. “I was just informed that they’re sold out.”

“Uh-oh,” said Brown, abruptly dropping character. “Um, we’re not. I don’t think so. It’s actually my company.” She whipped out her cell phone and placed a call to her office seeking confirmation. Indeed, there were still tickets left.

Though it troubled her, this was in fact the exact kind of information Brown was looking for. Ever since Super Duck Tours began operating this May, she’d grown convinced that the unoriginally named upstart was steering people away from her tours with all manner of trickery. And so Brown, a stylish social-circuit fixture more associated with the swirl of parties than rough-and-tumble business scraps, started embarking on these surreptitious expeditions, hunting for ticket sellers who were using shady sales techniques. Whenever she encountered customers who expressed confusion about the two companies, she personally collected their anecdotes—all of which would later pepper the suit she filed against Super Duck in federal District Court last month, alleging trademark infringement and financial hardship.

Cindy Brown hardly invented the duck tour concept—it was an enterprising businessman in Wisconsin who first retro-fitted a fleet of DUKWs (as the military vehicles were known when they stormed the beaches of Normandy) for sightseeing purposes after World War II, and the idea subsequently spread to a handful of other cities. Since bringing it here, though, Brown has made her tour a Boston icon, as much a part of the landscape as brownstones and churches. And she’s been known to throw some elbows to protect its uniqueness. When a now defunct company called Moby Duck Tours began operating in Gloucester in the mid-1990s, for example, Brown’s lawyers forced it to change its name to Moby Duck. When she discovered that London had its own duck tours, she brokered a transatlantic deal in which she receives a $1,000 annual fee for use of the name.

But in the manager of Super Duck, Dennis Kraez, Brown has found not only her most direct competitor, but also her toughest. He sees his copycat approach as merely the American way. “I thought the United States was founded on that type of principle: You see something that’s good, you go after it,” he says. And besides, he’s convinced he’s legally in the clear. The phrase “duck tours,” he says, just describes any amphibious sightseeing expedition—an argument he took to court when Brown filed her suit. So far, U.S. District Court Judge Nathaniel Gorton has shown himself disinclined toward Kraez’s view, granting a preliminary injunction barring the newcomer from using the disputed phrase in his company’s name for the duration of the legal battle. Kraez’s response to that was as shrewd as it was snide: While vowing to appeal the judge’s decision and continue fighting Brown’s lawsuit, he simply changed his tour’s name to Super Duck Excursions. He’s also moving forward with plans for adding to his fleet of three vehicles. Name or not, he’s here to stay.

Now both companies must face a fundamental question: Do visitors to Boston go looking for a duck tour, or Cindy Brown’s Duck Tour? Of course, Brown thinks the latter, but with the monopoly she’s enjoyed, she’s never needed to prove it. And that’s precisely what she’ll have to do going forward. Because while she may eventually try to force Kraez to make further, more drastic changes to his company’s name, Brown cannot shut him down altogether. Add to the mix a third amphibious-tour company (Cambridge-based Nautical Tours, which has said it will enter the marketplace this year), and it’s clear that a spirited fight for tourist dollars is about to be slogged out in the streets and waterways of Boston. Regardless of what it says on the sides of the boats, it’ll be duck versus duck (versus duck)—exactly the sort of tussle Brown has long managed to avoid.

Brown figured her first job out of college—an entry-level gig at the Boston Company Asset Management—would lead to a career in finance. Instead, it introduced her to the colleagues with whom she would launch Boston Duck Tours. Inspired by a duck tour that one of them had taken in Memphis, the group started offering trips in 1994 with a single boat, which by its second season had turned so many heads that visitors were literally lining up to buy tickets. Brown was just 25 at the time.

Over the years, the little tour company developed a local cachet, so much so that it’s become the parade transportation of choice for championship-trophy-wielding Patriots and Red Sox. But as it has evolved, it’s also posed a singular set of managerial challenges. For starters, keeping a fleet of two dozen sexagenarian ducks in working order is no simple chore: The steering systems, for instance, are no longer original issue; they’ve all had to be ripped out and replaced with parts from 1990s pickup trucks.

Then there’s the labyrinthine government bureaucracy the business must navigate. Boston Duck Tours needs a special permit to enter the Charles near the Museum of Science—and a few years ago had to pony up $1 million to upgrade the state-owned launch it uses there. Still, Brown’s lucky she started when she did. Despite Boston’s expanding tourism market (some 17.6 million camera-clutchers visited the city in 2005, up from 14.6 million in 1999), it’s a hard place to build a sightseeing business. In 1998 the city stopped issuing new licenses for tour companies, capping the number of vehicles on the road at 96 in an effort to control traffic during the Big Dig. That’s been a great frustration to everyone in the industry, chief among them Brown. While her company served 585,000 people last year, it had to turn away scores more because that day’s ducks were completely sold out.

If she could get the licenses, Brown says, she’d buy additional boats. The moratorium has one advantage, though, for established companies like hers: It creates an enormous hurdle for newcomers—one that Kraez took years to surmount.

The Boston Autoport, a 65-acre parking lot underneath the Tobin Bridge, is a gritty, industrial swath of asphalt that, it’s safe to say, is not on many vacation itineraries. It’s a far cry from Boston Duck Tours’ tonier headquarters in Copley Place, but for Kraez it makes sense as a base of operations. When he brought Super Duck Excursions (née Super Duck Tours) to town, he was already running the lot in his capacity as president of Diversified Automotive, which processes imported cars at the Autoport and then distributes them to dealerships. With garages and maintenance crews on hand, it’s a natural place to store his ducks, which set out on their tours from nearby Charlestown Navy Yard.

Kraez is a serious man with a graying moustache. In his 20-plus years in business, he’s grown Diversified Automotive from two employees to 175. But in the late 1990s, he and his partners decided to widen their scope. And in amphibious tours, they spotted a potentially lucrative way to do that. Kraez had watched Brown’s company thrive in Boston, but he saw room for improvement. He envisioned modern vehicles that didn’t come with the maintenance headaches of the DUKWs, and a route that showed off the city’s skyline from history-rich Boston Harbor. He thought he could give Brown a run for her money.

In 2000, Kraez came across a vehicle he thought perfect for the job. Called a Hydra-Terra, it’s designed specifically for sightseeing, and seats 49 people, compared to the DUKW’s 32. And because its passengers are kept high above the waves (unlike the DUKW, which sits low in the water, the better to avoid enemy fire), it’s certified by the Coast Guard to enter the open harbor.

Kraez had hoped to bring the vessels to Boston, but with the city’s freeze on sightseeing licenses, he knew that could take years. Eager to get started in the business, he spent about $600,000 on two Hydra-Terras, and launched Super Duck Tours in Portland, Maine, a historic seaside city with little tour competition. The ever vigilant Brown caught wind of this in 2001 and dispatched her lawyers, who demanded the company’s name be changed. When Kraez refused, Brown relented, deciding that her customers weren’t likely to confuse her tour with a startup two states away.

But two summers later, Kraez discovered a way into the Boston market: He would buy Foxboro-based New England Tours, which already had sightseeing licenses. Its owners were looking to leave the industry, and had once even offered to sell to Boston Duck Tours. Brown had passed on that deal, but now, hearing that Kraez was interested, she called to make an offer. But she was too late: Kraez’s purchase of New England Tours was approved by the state last August, and this past May he kicked off his Boston tours with a loop heavy on waterfront and Financial District vistas.

Things quickly grew testy. Tourists holding Super Duck Tours tickets began showing up to board Boston Duck Tours boats. On occasion, Brown allowed them to ride—then billed Kraez for the trips. (The invoices have gone unpaid.) When Boston Duck Tours’ automated phone message still described the company as the city’s only amphibious tour, Super Duck Tours demanded it make a new recording. Super Duck Tours set up a booth at the Prudential Center, near the entrance to Boston Duck Tours’ ticket office; Brown had Pru management boot the kiosk for lack of a permit.

Brown says she’s not afraid of a rival entering the market. “All of my issues are with the confusion. It’s not with their taking our business,” she says. But Kraez doesn’t buy it. “I think Cindy is a great tour operator, and I think she’s very upset that she has some competition,” he says. “Whether it’s good competition or bad competition, she doesn’t want competition. Unfortunately, that isn’t her choice.”

It’s 2 p.m. on a disgustingly hot summer afternoon. The air in the Navy yard is thick enough to choke on, and yet about 20 people are here to board Kraez’s Super Ducks. As we wait, a man who identifies himself as First Mate Joe hands out plastic duck beaks, which, when blown into, sound like Daffy Duck with a hangover. Immediately, every child on the tour is puffy-cheeked and noisy, and I am pitying those within earshot. When First Mate Joe starts in with his tour shtick, it’s like amateur night at the Comedy Connection. Of the North End, Joe tells us, “It’s so crowded, everything is organized—even the crime!”

The tour twice passes the John Joseph Moakley U.S. Courthouse, first by land and then by water. Had its floating passengers been equipped with binoculars on July 11, they might have seen through the courthouse’s curved glass wall to the doors of Courtroom 4, behind which lawyers from the sparring companies sat before Judge Gorton. There, they spent an hour parsing Kraez’s central contention that the term “duck tours” has become so generic it no longer qualifies for legal protection—that the words denote a business category, not a specific brand. Kraez’s lawyers recalled for the judge a case in which a Maryland eatery called Bethesda Crab House tried to stop a rival called the Crab House from opening nearby. The court dismissed the complaint, saying that because “crab house” describes a common type of restaurant, it’d be unfair for one company to control the phrase.

But the analogy didn’t move Gorton. “Duck tours,” he wrote in last month’s initial ruling, may not be an entirely original term, but “it has acquired a secondary meaning in the Boston area during the past 13 years.” In essence, he was acknowledging that—around here, at least—the term “duck tours” means Cindy Brown’s quacky, quirky Boston Duck Tours. Where the suit goes now is a question of Kraez’s resolve: He can push the matter to trial, or bow out and forge ahead under the new Excursions moniker—which, of course, Brown could decide to challenge, too.

Back on the Super Duck boat, First Mate Joe, despite the bad jokes, is treating us to a pretty enjoyable ride along a stretch of city never trolled by Boston Duck Tours. As we float past the USS Constitution, and rumble through the Financial District, I find the trip a worthy counterpoint to its predecessor, like a new chapter from a great book. Brown’s tour, I realize, had felt all-inclusive because it was the only one I’d taken—and I bet if visitors take only Kraez’s, they’ll feel the same way. Tourists won’t judge these trips by what they lack, but rather by what they show. It’s a testament to Boston that both can show so much.

And that’s what makes Kraez’s decisions all the more confusing. Or lazy, really: He’s demonstrated he has the wherewithal to build a decent tour—the route is solid, the Hydra-Terras are exciting, the views from the harbor beat those from the Charles—but chooses instead to squabble over naming rights, practically insistent on not building an identity of his own. And although neither will likely see it this way, that’s a favor to Brown. She could have had some serious competition, and perhaps one day she will. But for now, the new “excursion” has taken the posture of a cheap knockoff, something designed to feed from the bottom. And so long as his big new boats are ducks, Kraez will have a hard time proving otherwise.