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).
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)
And it's all written in straightforward language without a lot of marketingese.
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.
Carlo Gavazzi (another manufacturer of measure and test gear) had a series of yellow meters with black backs (the reverse of the Fluke scheme), and other brands have had instances of meters with exactly the same scheme as Fluke uses today (Fluke originally did not use colour at all for their equipment).
The end result of all this is that a bunch of good, working equipment is going to end up destroyed, SparkFun will have to decide to continue their campaign in light of this PR move by Fluke and SparkFun's customers still lose. On top of that SparkFun's brand will be damaged and at least 2000 of their customers have a negative experience with them.
This is not about money, this is about a bunch of people being denied access to the tools they had already bought and no amount of PR is going to fix that short of those people being send a replacement (maybe with another colour, how many distinctively coloured multimeter brands could co-exist anyway?).
If they had been stamped 'Fluke' that would be another story entirely, but this is as far as I'm concerned just pushing for brand protection because the law allows for it.
As for the safety angle, that's a red herring, nobody in their right mind is going to assume the isolation class of a piece of equipment based on the color of the casing.
They were out of stock, so presumably orders were taken and won't be filled, and now it will take even longer to fill those orders. Maybe some of those customers will even buy Fluke (unlikely, $20 vs $200 or so).
'their campaign': the alternative route, to seek redress, to get the colour 'yellow' narrowed down to the point where an orange DVM would be allowed to enter the United States without risking it being seized. It's a tool not a Louis Vuitton bag (I hope I spelled that right), and the colour scheme is not relevant. If it was unsafe or something like that then I could see the point.
Sparkfun did what they could, they're unable to meet this challenge head-on, this shipment (and possibly whatever else is in the pipeline) is lost for all the wrong reasons and Fluke gets to make out like they're the good guys. Pick your battles is good advice, and SparkFun has rightly decided this one isn't theirs but the grace is mostly on their side and significantly less on Fluke's.
This is exactly the argument I've seen from EEs so far -- that Fluke meters are much safer than the knockoffs, and that the grey-with-yellow-trim color scheme is distinctive to Fluke.
The EEs' safety concerns seem overblown to me, but they know a lot more about their field than I do, so I'm not inclined to dismiss them.
Fluke had other options here. I doubt that the "Maker community" is really even a significant part of Fluke's sales, and the internet has the attention span of a cracked-out gnat. They could've easily ignored the whole thing altogether and been no worse for wear. Before anyone objects: pop quiz time, how many of you are at all aware of Autodesk's licensing policies?
Fluke is as bound by the law as everyone else; as they explained in their post, they can't ignore trademark infringements, and they weren't even aware of the customs' seizure, they didn't make that decision.
So, yeah, donating a pile of units to Sparkfun is generous of them and I really don't think it was primarily motivated by PR.
As far as the wastefulness of the action goes ... I don't disagree, but I also find it peculiar that people are even mentioning that, especially in a forum like this one, in this age of ubiquitous disposable electronics. My little shop has been having to tell a lot of folks recently that they should replace their otherwise perfectly good computer just because XP support is about over. Nobody seems to think that's wasteful, though.
Agree. And curious what the PR value will be vs. the cost of goods for Fluke (which is their cost, not the wholesale and/or selling price).
Personally I think it's unfortunate that they needed, in this day and age of social media, to have to bogu on this situation and get out in front of this issue by doing this. Of course by what I say in the first paragaph it may very well not be a bogu at all but end up being a rather smart move to gain business in the maker community.
I've been observing business for a longer time than most people on HN have been around. I have to say I've never ever seen anything like this happen.
I've already spent a few thousand dollars on Fluke equipment this year, and could imagine spending a few thousand more before the year is up. I'm a small customer. It wouldn't take many like me to make up for ~30k worth of stuff.
They need to be more specific on what their trademarking.
Still prohibited selling yellow multimeters?? Is that a joke??
I think there are many Fluke PR employees posting messages telling what a great company Fluke is for this response...
IMHO, this patent is just ridiculous.
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?
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.
Twitter seems to do this too (frequently I'm prompted to log in.)
Bah, I want my ye olde internet back.
In all seriousness, I know my opinion matters very little, but I just don't visit facebook for reasons.
Was very confused about Facebook talking so much about hardware.
If it were your product, which was a high quality product, and some cheap knock offs came in with basically everything the same but the label... you would not be happy.
This is pointless waste and a huge scandal.
Every multimeter I've ever owned was yellow.
Goods that are seized and forfeited as bearing a mark
that is a counterfeit of a registered trademark, piratical
of a registered copyright or imported in violation of
distribution rights agreements are routinely destroyed,
unless the owner of the trademark/copyright gives
permission for other disposition, such as charitable
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."
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.
"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/
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.
This is coming from the USPTO's website. If it's invalid because it only mentions Fluke's trade dress and not its name or logo, that'll probably be news to the folks running the USPTO. You might want to mention it to them.
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:
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.
Just because a product is distributed with different intent and audience does not mean it does not deserve to exist.
Excuse me while I enjoy this hot pocket, I find them quite alright, thank you.
The product looks like a Fluke -- until you look more closely and notice how awful the build quality is. That a cheap Chinese multimeter looks like a Fluke was not a fluke.
I've seen a lot more than that spent on marketing stunts, except in this case the consumers actually benefit by getting better equipment.
If touching it can kill you, I wouldn't go anywhere near it with a 15 bucks meter. And for everything else, the sheer terribleness of these will soon annoy you into buying something usable.
Some very good examples of this principle:
For hardware supplies, yes, having a bad device is better than having none. For crypto software - no, it must be state-of-art or we're screwed.
If you pardon the pun, he's having a shocking suprise, if he survives.
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.
fluke multimeter: http://www.rigoloscilloscope.com.au/upload/pro/2010111106244...
sparkfun multimeter: https://cdn.sparkfun.com/assets/home_page_posts/1/4/2/8/DMM_...
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.
"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.
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.
It's very classy of them to make Sparkfun whole.
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 :/
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.
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.
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.
The problem with meeting CAT ratings is transient voltage spikes- I don't recall exact numbers, but some for some of the higher CAT ratings multimeters are required to withstand (meaning continue to operate, or fail in a safe way, with no harm to operator) several kilo-volts.
Cheaper multimeters just literally blow up: http://www.youtube.com/watch?v=M-FZP1U2dkM
Not that I'd like the CPSC anywhere near electronics, either. But given the amount of QA those meters probably (don't) receive and their intended market, Sparkfun should be responsible and either post their ongoing testing process, or probably just drop the rated voltage to 100V.
The argument about trademark needs to stand on its own, without the argument that the current owners of a trademark are going some safety critical job.
Red = accessible, versatile hobbyist equipment
Yellow = rugged, reliable industrial equipment
Great response from Fluke nonetheless.
SparkFun has been selling a type of inexpensive digital multimeter since 2008.
About two weeks ago, they were informed that a recent shipment of 2,000 units (a $30,000 value) was seized by customs due to a trademark owned by Fluke (granted 2003). Specifically, their units violate Fluke's branding (gray face, yellow border).
The Chinese manufacturer won't take them back (prohibitively expensive due to import tax) so SparkFun has to pay to have the units warehoused ($150/day) and—very shortly—destroyed ($150/hour).
Moving forward, SparkFun will change their DMMs to be red instead of yellow.
Some people try to fix the system. Some people try to do good within the system. Some people do both. Don't shit on someone's parade because you don't feel they didn't do enough, otherwise you alienate your allies.
But your original comment is orthogonal to working within the system. Saying that companies have to "protect their trademarks or lose them" is indeed true in the strict legal sense. But a company could legally "protect" their trademark by issuing yearly licenses for token compensation for products that they consider different enough, but the law might not.
By taking the strict legal definition out of its narrow context, you imply that a company has no choice but to act a certain way, when in fact there are specific people responsible for its behavior. We should not allow these people abdicate their reasoning by promoting the idea that the expected corporate action is the only possible course.
Nope. This is known as "naked licensing",and can lead to loss of the mark.
This is trademark law 101, not a 'mindless aphorism.' Any trademark lawyer will tell you that firms need to police the use of their marks if they wish to courts to enforce their rights in the mark. What basis do you have for claiming otherwise?
I could just as easily argue that the fault for the waste here lies with the Chinese exporter who refuses to take back the unwanted product which infringes on someone else's trade dress. I don't buy the argument about import taxes making it too expensive, this is what entrepots are for.
The truth is they are required to "protect" their trademark, but that doesn't require anything like what their actions were today. It's an almost irrelevant and highly misleading statement to throw into the discussion. Just to give an example, they could easily have arranged with SparkFun to allow the goods through but require a sticker be placed on each item identifying that it is not a Fluke product. That would also protect the trademark. If there is evidence that SparkFun is wilfully antagonistic and uncooperative then destroying products seems like a last resort you might arrive at. But before that there are a million different solutions that don't involve destroying and blocking SparkFun products open to both parties.
We hear of plenty of similar cases where some firm sends a C&D to a barely related firm, and a common refrain is that the first firm simply must defend their trademark in such a manner, leaving no room for judgment. I am pointing out that this is patently false.
We hear of plenty of similar cases where some firm sends a C&D to a barely related firm
It's not similar if they're barely related.
I personally don't think this meter directly competes with Fluke - Sparkfun has lots of great things, but test equipment is not among them. But we can agree to disagree about this, and my point stands irrespective of it - Companies, despite being legally compelled to churn on anything remotely related to their trademark, can choose to protect their marks from erosion in amicable ways. Thus, companies can and should be judged for the actions they do take.
The reason I called the original statement an 'aphorism' is because it's indeed true in a sense, but its simplicity hides the entirety of the situation. It's part of a larger trend of people abdicating individual reason and responsibility, and passing the decision making to a nebulous non-entity ("everyone else is doing it.."). If a professional job is performed this way, then the value-add of a person is merely a human face, and they should be replaced with a short shell script. Then the actual professional human up the chain can better exercise their own judgment.
But there's no arguing that Sparkfun isn't in direct competition; it's a multimeter, Fluke sells multimeters, the fact that they're not in the same price bracket is beside the point. It's completely rational that Fluke would not want to dilute its mark by allowing an inferior product to go out in the same trade dress, so I don't agree with your notion that licensing it out would be OK and I don't agree with the poster above that a sticker is sufficient. And again, bear in mind that Fluke initiated a trade complaint, but it's CBP that ended up with the goods in a warehouse asking Spark to make the decision to pay for them to be sent back to China or to be destroyed. They have no way of knowing whther they're destined for a cool little company like Sparkfun or some dingy hardware store that's trying to fleece its customers by selling cheap knockoffs.
Really, the issue here is for Sparkfun - trademark searches are free these days, Fluke isn't even seeking any kind of compensation for them, so I don't know what their excuse is for not checking. If they were selling an mp3 player or a coffee mug in the Fluke black-and-yellow trade dress, then yes I'd be for some sort of licensing arrangement, and I agree that those often work out better for the trademark holder as a kind of free advertising.
No, Fluke figured $30k was a cheap way to bury the PR issue and not have Sparkfun selling Fluke knock-offs.
Allowing a company to use your trademark without entering an agreement is a bad idea.
I'll bet that license has a ton of restrictions.
Amprobe might take issue with that: https://www.google.com/search?q=amprobe&tbm=isch
I'm not sure if they have a patent on it right enough.
I'm going to be reloading the "Fluke" search on Sparkfun until something shows up in the products section...
 http://www.thefreedictionary.com/fluke - definition #3
Fluke's entry level meter is $130 on Amazon maybe they should make a less expensive model for Sparkfun to sell to the makers.
It is a trademark, or trade dress registration.
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.
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.