
SparkFun: We Hear You - surge
https://www.facebook.com/notes/fluke-corporation/sparkfun-we-hear-you/10151978262765592
======
DannyBee
One slight error.

Fluke says: "It’s important to know that once we’ve filed for and received
trademark protection, US Customs has the responsibility to determine what to
stop at the border, or what to seize. In this case, we first learned of this
issue from SparkFun’s blog."

This is only kinda correct. It's theoretically true. However, these particular
items were stopped due to an ITC order, that resulted from action taken by
Fluke (though not deliberately against sparkfun).

See
[http://www.usitc.gov/publications/337/pub4210.pdf](http://www.usitc.gov/publications/337/pub4210.pdf)

This is US ITC exclusion order 337-TA-588, which is referenced in the letter
customs sent to sparkfun. This was another case where they complained about
the color of some multimeters. Had this action not been taken, there is a zero
percent chance customs would have done anything to sparkfun.

Sadly, it's not possible to tell what the items in this order looked like for
sure , because although there are "full color photographs" attached as
exhibits, for some reason they scanned it in black and white ;)

(The last part of the statement, about them not knowing, is almost certainly
true)

------
thaumaturgy
Wow, what an amazing and generous response from Fluke. I can't remember a
better response from a company, ever, in a trademark / patent / copyright /
licensing dispute.

And it's all written in straightforward language without a lot of
marketingese.

~~~
fnordfnordfnord
Jack Daniels does it with class too.
[http://brokenpianoforpresident.files.wordpress.com/2012/07/j...](http://brokenpianoforpresident.files.wordpress.com/2012/07/jd-
letter-entire-big1.jpg)

~~~
IgorPartola
That's fantastic. I bet you this cost everyone less money then litigation. The
only way they could have made this better is if they sent the author a bottle
too.

I have come to believe that there are contracts and there are intentions
behind the contracts. A person or a company can sign a contract, and have no
plans to fulfill it and at the same time a person or a company can fulfill a
promise without signing any contract. While contracts are a necessary evil,
the real question is what does the other party intend to do.

~~~
jbenz
For the record, Jack Daniels sent us a Cease & Desist recently and it was not
nearly as nice as this one. It was your standard "stop doing this or we will
take action" C&D. (We had parody t-shirt designs in our user gallery.) A
letter like this would've been easier to swallow.

------
davesque
Am I the only one that is finding their response to be unsatisfactory?

Let me translate it for everyone:

"Hey, we realize how much it sucks that your merchandise was seized and will
now be destroyed. As far as that goes, well...too bad. _However_, we'll allow
you just this once to distribute our own merchandise and spread awareness of
our brand name for us."

Is this really a fair deal? Does SparkFun really want to be under Fluke's
thumb and promote Fluke's brand at the expense of promoting their own?

In addition to that, they still have a monopoly on the color yellow in their
market.

How is this an admirable move by Fluke?

~~~
jessaustin
"Admirable" in a very narrow sense, perhaps: they've snowed both Sparkfun and
the general public, and have strengthened a dubious trademark to boot.

------
seszett
It's a bit of a shame that Fluke uses Facebook for publishing official
statements.

Other than that... well, good reaction from Fluke. I'd say all events, from
seizing the multimeters to the resolution today, unfolded in the best way
possible.

~~~
haptiK
Explain to me why it's a shame to have used Facebook?

~~~
mixologic
Facebook isn't the web. Its a siloed private service. A company the size and
reputation of Fluke should have their very own website that they can put
messages like that on. Otherwise, they're merely giving facebook revenue by
having that many more pageview opportunities to show everybody ads.

~~~
jmathai
You don't need to be logged in to view the post.

~~~
dublinben
You still have to visit facebook.

~~~
bch
It hasn't been explicitly stated yet, and may not be apparent to everyone, but
it's blocked in some networks. It's not just a case of "I despise Facebook so
much I refuse to visit it."

~~~
jmathai
That's a very valid point. Hadn't considered that.

------
johansch
So the end result is still an enviromentally unfriendly destruction of 2000
perfectly fine multimeters. Just because they are yellow.

~~~
toomuchtodo
Baby steps. You can't expect massive changes overnight in such a complex
system. Fluke did a solid AND the trademark system is broken; both are news.

~~~
johansch
A nicer solution could have been:

Fluke: "We'll swap your 2000 chinese multimeters with 2000 Fluke multimeters.
We will send the non-fluke multimeters to under-funded universities in
africa/asia/wherever."

~~~
EpicEng
Why in the world would/should Fluke give away ~$800,000 worth of product (that
sparkfun would make a ton of money off of) because someone decided to violate
their trademark and paid the price for it? We're talking about 2,000 _vastly_
inferior multimeters here.

You may or may not agree with the trademark being issued in the first place,
but it was, and I don't blame fluke for wanting to protect their brand. They
make a really good product. These things are pieces of garbage in comparison.

~~~
jaeysin
But they didn't violate their trademark, there is no use of the name Fluke or
their trademark.

"A trademark is a brand name. A trademark or service mark includes any word,
name, symbol, device, or any combination, used or intended to be used to
identify and distinguish the goods/services of one seller or provider from
those of others, and to indicate the source of the goods/services. "
[http://www.uspto.gov/trademarks/basics/](http://www.uspto.gov/trademarks/basics/)

You could make an argument that the products themselves are look-alikes, or
pursue them if they created a similar trademark to cause confusion, but it
doesnt seem to me that they obviously acted to violate a trademark.

~~~
rhizome
which is called "trade dress" and is much more difficult for fluke to prevail
on.

~~~
gonzo
though they did.

~~~
rasz_pl
No they didnt. Nobody questioned their bogus trademark yet.

Sparkfun isnt exactly in ideal position to fight Fluke, after all they very
well might make a ton of money selling Fluke gear in the future. No point
getting hostile over ~$20K.

Fluke received a trademark for a item design that WAS ALREADY IN USE for at
least 20 years. Trademark in the center of all this is ~"dark case, yellow
face". They didnt even come up with the design first. Look at the second one
from the top:
[http://www.stevenjohnson.com/apparatusdesignco/index.html](http://www.stevenjohnson.com/apparatusdesignco/index.html)

Fluke multimeters started white/gray/beige, then went black, then yellow.
Yellow on black is new to fluke.

Basically they STOLE generic, already used design and trademarked it same way
one click and round corners received US Patents.

~~~
darklajid
Nitpicking: I think you have the colors wrong - it's "yellow case, dark face"
as far as I understand. Not that it makes a huge difference..

~~~
rasz_pl
Yep, realized it just now :D still trademark was granted in 2003, and if you
do a google seatch with date limit set to 2002 you will find plenty of
multimeters with that look, Fluke was granted retroactive trademark for a look
that was generic at the time. Its like Ford receiving 4 door car trademark :/

------
aray
Given that Fluke multimeters cost about 10x what the destroyed ones are,
sparkfun is still out $30k to replace the shipment + destruction fees, and now
have probably 200 fluke units to try to recoup some costs with.

~~~
georgemcbay
While this is true, Fluke's response could have easily been "eat a bag of
dicks, Sparkfun" and their actual response is quite a bit more friendly than
that.

I think there is still blame to go around here but more on US Customs than
Fluke, particularly since the Sparkfun multimeter color isn't really that
close to the "Fluke yellow". It would be nice if there were some simple (via
some arbiter, not the slow legal system) ability to appeal such decisions
prior to exportation or destruction of all the stock.

~~~
vacri
The yellows look pretty similar

fluke multimeter:
[http://www.rigoloscilloscope.com.au/upload/pro/2010111106244...](http://www.rigoloscilloscope.com.au/upload/pro/2010111106244537.jpg)

sparkfun multimeter:
[https://cdn.sparkfun.com/assets/home_page_posts/1/4/2/8/DMM_...](https://cdn.sparkfun.com/assets/home_page_posts/1/4/2/8/DMM_Yellow.png)

~~~
georgemcbay
I've got a sparkfun multimeter and have used lots of fluke gear and the color
is quite different looking at them in person. Sparkfun's color is closer to
the orange of Tenma gear (though lighter) than it is to the yellow of Fluke's
gear, which is unmistakably yellow.

------
TerraHertz
Superficially it may seem like a generous response from Fluke. But you can bet
that if there wasn't such a backlash against their action of lodging a
complaint with US Customs, they would not have done this. Also I think they
were already suffering serious commercial and image harm, which they realized
would only get worse.

So really, it's self-preservation, not generosity.

Generosity would be to accept that 'yellow body, dark face' is not something
they should try to own, or be able to own. If they cancel their ridiculous
Mark registration, then I might believe Fluke had developed an actual soul,
instead of mere corporate image loss/benefit calculation.

~~~
davesque
Yep, exactly. Furthermore, SparkFun gets dubious "privilege" of being a Fluke
distributor for a day.

"Don't worry SparkFun. We'll let you give out some of _our_ product as
compensation. Oh, that doesn't really help _your_ business in the long run?
Jeeze, sorry I guess..."

I'm a little disappointed in the Hacker News crowd on this one. It doesn't
seem like anyone's thinking this through.

------
mindslight
So then, nothing to be done about the needless destruction of the shipment of
meters by customs? As Sparkfun said, Fluke could easily issue a temporary
license to prevent that draconian waste.

If they think those meters are actually going to dilute their brand (hint:
they really aren't), then make the importation license require Sparkfun to
rework the meters domestically before distributing them.

~~~
cjensen
As Fluke said, they want customers to know that if a product appears to be a
Fluke, then they can safely use it in a high-voltage environment. The
implication is that no, they are not going to permit them to enter the US.

It's very classy of them to make Sparkfun whole.

~~~
mindslight
As I said, Sparkfun could rework them domestically to change their appearance,
avoiding destruction and avoiding sending them back to China.

Also, does anyone have tips on how to get the smell out after accidentally
using an overripe banana to "test" my breaker panel? I thought checking the
color would be sufficiently safe :/

~~~
fancyketchup
The great thing about comments like this one are that they help me identify
whose opinion not to take seriously in the future.

Not being able to distinguish the difference between copying multiple
distinctive elements of trade dress (yellow back _AND_ yellow front border
_AND_ uniform grey front) and inadvertently using a particular color anywhere
on the product is really quite an amazing feat.

~~~
mindslight
Yep, any use of hyperbole forever invalidates everything someone says.

FWIW, there's only two "elements" (the back and border are one piece), and
their distinctiveness is specified in terms of basic colors one learns in
elementary school.

The ability to monopolize a general two-tone color scheme on a durable tool
that someone may use every day is outright ridiculous.

~~~
fancyketchup
It may be the case that the two pieces of plastic are "yellow back and border"
and "grey front cover, " but having any other color on the back invalidates
the infringement claim. If they had done a yellow border with grey sides and
back, they would not have infringed. If they had done yellow back and grey
front (with no border) they wouldn't have infringed. If the had done yellow
front and grey back without border or yellow front and back with grey border
they wouldn't have infringed.

There are all sorts of ways to make a yellow and grey multimeter that don't
infringe on Fluke's trade dress. Fluke _isn 't_ monopolizing a general two-
tone color scheme: They are monopolizing a _specific_ arrangement of two
colors, and that is an eminently reasonable thing to do.

This is a little like arguing "Well, copyright shouldn't exist because you
shouldn't get a monopoly on just some general words." But that's a strawman--
you can only obtain a copyright on a _specific_ _arrangement_ of general
words.

------
stevenkovar
It would be interesting to see SparkFun introduce their products with their
own red color to brand hobbyist equipment as its own segment—compliment
Fluke's reliance on color to connote the primary qualities of the brand.

Red = accessible, versatile hobbyist equipment Yellow = rugged, reliable
industrial equipment

Great response from Fluke nonetheless.

~~~
pmorici
Well Fluke sells meters with a red color scheme too so...

[http://www.fluke.com/fluke/tten/Digital-
Multimeters/Specialt...](http://www.fluke.com/fluke/tten/Digital-
Multimeters/Specialty-Multimeters/Fluke-28-II-Ex-Intrinsically-Safe-True-rms-
Digital-Multimeter.htm?PID=74148)

------
ubercore
This is a great response, as far as I'm concerned. I especially appreciate
them explaining why this issue could be more than just "trademark gone awry".

------
skeletonjelly
Had to look it up myself.

Context:
[https://news.ycombinator.com/item?id=7428799](https://news.ycombinator.com/item?id=7428799)

------
imroot
I'm impressed that Fluke took these steps to go above and beyond what I
expected them to do in this situation. This was written in a very neutral tone
without marketing spin.

------
bronson
Just when I thought I couldn't love Fluke any more. Impressive products,
impressive company.

I'm going to be reloading the "Fluke" search on Sparkfun until something shows
up in the products section...

------
smoyer
You really have to wonder why a vendor of "precision test equipment" would
want to protect a trademark of the word "fluke"[1]. Wouldn't you rather your
measurements were "consistent"?

[1]
[http://www.thefreedictionary.com/fluke](http://www.thefreedictionary.com/fluke)
\- definition #3

~~~
gvb
The company name wasn't a fluke, John Fluke named it after himself.

[http://en.wikipedia.org/wiki/Fluke_Corporation](http://en.wikipedia.org/wiki/Fluke_Corporation)

------
pmorici
It's kind of silly that you can trademark a color like that. Maybe Sparkfun
should have Fluke's red meters stopped at the border because they are red, the
color associated with the Sparkfun brand. It probably doesn't make business
sense for them to do that though.

[http://www.fluke.com/fluke/tten/Digital-
Multimeters/Specialt...](http://www.fluke.com/fluke/tten/Digital-
Multimeters/Specialty-Multimeters/Fluke-28-II-Ex-Intrinsically-Safe-True-rms-
Digital-Multimeter.htm?PID=74148)

Fluke's entry level meter is $130 on Amazon maybe they should make a less
expensive model for Sparkfun to sell to the makers.

~~~
olefoo
It's not a patent.

It is a trademark, or trade dress registration.

[http://en.wikipedia.org/wiki/Trade_dress](http://en.wikipedia.org/wiki/Trade_dress)

If you make agricultural equipment and paint it a bright green and yellow;
John Deere will come after you because at least some people might get the
impression that you are at the least trying to take advantage of their
reputation.

~~~
pmorici
That's my point, Sparkfun's trademark is red packaging and PCB's. Fluke makes
a red meter Spark fun should ask them to stop selling that meter because
people might confuse it with a Sparkfun product.

------
kubiiii
Metrix multimeter usually are blue. I can think of at least another quality
multimeter brand that use the yellow/dark grey. What if red was not even an
option to make cheap multimeter and if all the colors were covered by patents?

------
urza
This is ridiculous. How can you trademark yellow color? America is crazy.

All these patents, copyrights, trademarks and other form of memes
monopolization are only slowing down cultural evolution to the disadvantage
for all of us. The cultural evolution work similarly as biological. If yellow
color is good for users, let is spread. Then some company will most likely add
small tweak that will turn into yet another benefit and better product. The
society benefits. Whereas in current system only one company benefits. That is
wrong because patents etc were made to benefit the society, not some greedy
companies.

------
forgotAgain
Good products and a good PR department as well. Most companies don't have
either.

------
eyeareque
Can't they just make a (maybe 3d printed) stencil, and then spray paint the
devices a different color? Sure, it could rightfully add 3-4 dollars of cost
to each device, but it makes more sense than just destroying them.

------
damian2000
If SparkFun had decided to drop ship those same multimeters to their end-
customers directly out of China (or wherever they are sourced from), via mail,
would customs have seized each individual multimeter? I think not.

~~~
bananas
Actually I've had stuff imported from HK that was seized at EU border as in
single items. It does happen. In this case a single rip off Rotring 600 clone
from AliExpress.

------
AjithAntony
Ooh, Maybe we'll get a chance to buy a Fluke from Sparkfun for $15 (or less)

------
nickbauman
Instead of destroying them, why not paint them so as not to waste them?

~~~
astrodust
Should really send them back and get a new housing made.

------
sitkack
Let this be a lesson on damage control. If you can do something like this, you
should. They have nipped a kerfuffle in the bud.

------
quarterwave
Imagine how much money would have been spent if this had to go to court to
achieve the same result: we'll let you go this time, but in future please pay
more attention to product design/appearance.

------
alexjv89
Wow ...

