Obiter Dicta

Bray-Zen Deception?

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This is the story of a bank and its asses. Oops, you may be saying, that should have been “assets.” But no, we got it right.

In April 2004, Emma Welch-Cooper of Lewellen, Neb., bought two donkeys from a longtime acquaintance, Jerome “Pee Wee” Fleecs. She was in the market for a couple of jennies—or females, for you city slickers—for breeding purposes.

After she paid Fleecs with a $500 check, the animals were loaded into a trailer. It was then that Welch-Coop er’s husband noticed that the animals were not jennies but jacks. When Welch-Cooper was unable to retrieve her check from Fleecs, she and her husband reportedly unloaded the animals and stopped payment on the check. Fleecs, however, cashed the check several months later, aided by a clerical error.

After Fleecs refused to return the money, the bank sued him.

Wayne Griffin, the attorney for the First National Bank of Lewellen, says Fleecs “was contacted within a day or two” by a bank officer and told about the stop on the check. Fleecs says that isn’t true. “I did not know no payment was stopped,” he says. “I said, ‘Is this check any good?’ [The teller] said, ‘That check’s all right.’ So she cashed it.” The bank ended up owning the asses after a court ruled in favor of Fleecs. Griffin says his cli ent chose to leave the an i mals with Fleecs.

Fleecs insists Welch-Cooper was never told that the animals were jennies. “I told her I had two miniature donkeys,” he says. “That gal should know what the hell she is doing. She did not buy them in the dark.”

Ruffled Feathers

Everything Was Ducky Until Competitor Took a Shine to Quackpot Gizmos

If, someday, while taking in the historic sights of Philadelphia you should happen to hear duck calls, there’s no need to run for cover. It’s most likely the quack-happy riders on a land/water vehicle operated by Tour Company Ride the Ducks—or its competitor, Super Ducks.

Feathers were flying recently in a legal dispute between the two companies over similar quacking gizmos handed out to passengers. It boiled down to one essential question: Is it possible to trademark a quack?

Ride the Ducks began operating in Philadelphia in 2003 and handing out its trademarked Wacky Quacker noisemakers, a gimmick that became popular with passengers. In 2004 Super Ducks surfaced and soon began distributing its own version of the toy—calling it a Kwacky Kwacker—to passengers.

Ride the Ducks attorney Michael Gaier says Super Ducks was warned that the Wacky Quacker was a trademarked item, but the company chose only to drop the Kwacky Kwacker name and keep the noisemakers.

“We think it’s ridiculous,” says the attorney for Super Ducks, Morris Hershman. “Not worthy of protection. They never designed the Quacker. They don’t make it. They try to say you can’t use it.”

A U.S. district judge ruled in March that the Wacky Quacker was not “inher- ently distinctive” enough to warrant trademark protection, and that a quack is too familiar to patent.

Gaier has filed an appeal. The judge “only applied the noise factor,” he says. “I think the law requires him to look at it in totality.”


Stories by, Wisconsin State Journal; research by Wendell LaGrand

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