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SparkFun: We Hear You (facebook.com)
257 points by surge on Mar 20, 2014 | hide | past | web | favorite | 153 comments

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

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)

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.

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.

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.

Thanks for sharing that - I have a new respect for Jack Daniels after seeing how respectfully they handled that. A model of how these types of issues should be worked out.

Wow, now that's something you rarely see in legal correspondence: respectful, even-keeled explanation over "I'm going to hit you with this tersely-worded hammer if you don't comply" legalese.

I'm on the fence about how generous this is. Fluke was obviously headed for some bad PR, they were allowed to get a 'trade dress' protection for their not-so-distinctive design (I've seen yellow multimeters from long before I ever used a fluke, yellow is simply a good colour for a tool because it makes it stand out).

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.

The only customer involved is Sparkfun, they were purchasing the meters for their own stock. Nobody had pre-ordered them. Not sure what SparkFun campaign you're talking about.


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.

> If it was unsafe or something like that then I could see the point.

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.

"what an amazing and generous response from Fluke"

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 was really surprised and impressed not only with their response, but also with how quickly they responded.

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.

Their response is very cool i have more respect for them now however that still doesn't change the fact that trademark is too vague.

They need to be more specific on what their trademarking.

I doubt they're getting any serious PR from this. I've been to Fluke HQ. They're a pretty small company, full of incredibly nice people.

I'm guessing the PR value is magnified by the unusual brand recognition of SparkFun -- one of those brands that folks admire, even if they've never bought anything from them.

Amazing?? Generous??

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.

Not yellow multimeters. Multimeters with a dark coloured face, with a yellow border around the face.

How many products have you designed and shipped? If that number is non-zero, have you had a problem with cheap offshore reproductions messing with your business?

This isn't a Patent, it's a Trademark.

The maker community is important. It does fluke no favours to piss them off. Nice to see a switched on company.

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?

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

Agreed. There's nothing wrong with a company wanting to run damage control in this situation, but the level of praise here seems out of sync.

I'd call it "clever", but not "admirable".

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.

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

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.

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

This has been true for this post, but there have been many "view this on facebook" posts that do block you with a signup.

Twitter seems to do this too (frequently I'm prompted to log in.)

Bah, I want my ye olde internet back.

Yeah, but I won't read it if it's on facebook. And I'm like reeeeaaallly important to this company.


In all seriousness, I know my opinion matters very little, but I just don't visit facebook for reasons.

You still have to visit facebook.

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."

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

I thought it was a shame for a different reason. Given I'm far from an avid Facebook user these days, the UI led me to believe this whole thing was a statement being made by Facebook, until I got to the very end of the letter: "Signed, Fluke Corporation."

Was very confused about Facebook talking so much about hardware.

So you didn't notice the big Fluke logo in the top right? (perhaps it's not present on mobile?)

I didn't notice until after you mentioned it. That said, at first I thought the letter was from SparkFun so maybe I'm not very awake today!

I thought it was from Sparkfun as well, but it's also early and I didn't know of the situation until reading this response.

For me it's a shame because I have blocked Facebook, so I can't see it. But isn't it always "Login-Walled", in that you can only see stuff as a registered Facebook user?

Any pages marked as "Public" are accessible without a login. As soon as you put any restrictions on the audience, it makes everyone log in to check them against the list.

Apart from the part where the law turned out to be so broken to make it happen...

Its not broken if you consider it protecting the companies of the united states from knock offs. That company that made those multimeters had the full rainbow of colors and an infinite choice of shapes, dials, displays to choose from. They basically decided fluke was great, copied almost everything, sold it cheaper.

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.

Oh come on. Every multimeter I've ever owned was yellow. The Sparkfun multimeters look like every other cheap multimeter, and decidedly unlike Fluke's. It's not even the same damn shade of yellow.

This is pointless waste and a huge scandal.

  Every multimeter I've ever owned was yellow.
Fluke is yellow border with a dark gray/black face. Not 'yellow multimeter'.

Does that mean Fluke forfeits the right to try and stop the flow of knockoff products?

Did you miss where I said "The Sparkfun multimeters look like every other cheap multimeter, and decidedly unlike Fluke's"? I reject the premise that any yellow multimeter is a "knockoff product". You can buy similar multimeters in any Radio Shack in the world.

Indeed. But given that the law is what it is, this is a fairly good response from Fluke. More than I expected, TBH.

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

They need not be destroyed[1] :

  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 seems like they might be cool with that.

[1] https://help.cbp.gov/app/answers/detail/a_id/105/kw/what%20h...

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.

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."

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.

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/

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 would appear to be the specific trademark they violated: http://tmsearch.uspto.gov/bin/showfield?f=doc&state=4809:7pu...

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.

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

though they did.

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

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.

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..

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 :/

You are comparing products aimed at two entirely different markets; may as well be saying that 'Lexus has every right to copyright a yellow car because KIA makes such an inferior car.' .

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.

Not just yellow. A distinctive yellow outer case with a black face.

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.

actually, if the sales channels are different, there is an argument that use of a similar mark (or trade dress) is not confusing.

> Why in the world would/should Fluke give away ~$800,000 worth of product

I've seen a lot more than that spent on marketing stunts, except in this case the consumers actually benefit by getting better equipment.

Marketing stunts don't usually give away the core product.

Do things that don't scale!

I think you mean trademark.

That I did.

Are you trying to get people in africa/asia/wherever killed?

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.

Poor people may not be able to buy expensive equipment. It may be that having worse equipment is better than none. We shouldn't always apply the same level of "if one person gets hurt it is unacceptable" protectionism to other societies.

If your choice is e.g. between using a not-safe-as-a-Fluke meter to help fix your vehicle that broke down in a remote area, or starve to death, would anyone really choose the latter?

Some very good examples of this principle:



I wish people would consider this more often. We seem to have an epidemic of "if we can't do it perfectly, we shouldn't do it at all" infecting many areas of American life at the moment. Unfortunately, this usually results very little perfect and a great deal of not doing anything.

Depends on particular niche.

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.

They are donating the multimeters, that's what the Sparkfun blog says at least: https://www.sparkfun.com/news/1428


That would still dilute the mark. Fluke had a lot of options and it looks like they took the best one.

Do they really have a trademark for yellow multimeters in e.g. Tanzania?

An oversimplified answer to an oversimplified question: yes.

The truth is, Sparky the dumb technician may think that because they are yellow and very similar, the multimeters have 50000V isolation like the flukes.

If you pardon the pun, he's having a shocking suprise, if he survives.

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.

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.

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.

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.

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.

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.

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.

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 :/

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.

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.

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.

Oh, did your banana have "CAT III Max 600V" stencilled on it? The $15 multimeter does. I suspect the cheap meter has about the same right to wear that label as the banana.

Does Sparkfun's product actually fail in 590V environments? That seems like a more serious concern tha branding.

I doubt it will fail in such environments (at least, for most of the time).

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

Probably not, but if it does fail at 500V, I wouldn't want to be around. The short circuit current and energies available generally go up with the voltage, and who knows how well thought out its failure modes are.

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.

Probably not? Tear downs of cheap knock-off multimeters have shown that they very well can and will fail.

Try an orange box of white powder. Or spray an aerosol can with a floral color at it.

The safety argument is a bit weak. There's nothing stopping anyone at Fluke from shipping poorly performing devices with Fluke branding. This happened for instance with Pyrex, when they changed the glass so it wasn't as strong. Anyone counting on the Pyrex to not explode under certain conditions was in for a nasty surprise.

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.

Pyrex brand owners trashed their own brand and hurt their customers. That's there choice, not someone else's.

Why wouldn't they dilute their brand? They've built up a reputation of building a high end product. If someone begins selling a product that looks nearly identical to their own, that's of inferior quality, how does that not affect their own reputation?

Because professional engineers choose test equipment based on functionality, and color schemes fall pretty low on the list. (yeah, this may be hard to believe if you have a primarily software background)

Sparkfun isn't a site for professional engineers, it's a site for hobbiests. Professional engineers typically don't buy shoddy gear which can end up blowing their arm off.

So we agree!

Professional engineers aren't the only people buying multimeters. Lots of people who work as electricians and wiring techs also buy multimeters, and many of them do buy by brand which is, conveniently, color scheme.

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.

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


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".

Had to look it up myself.

Context: https://news.ycombinator.com/item?id=7428799

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.


Summary of events leading to this response:

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.

Its important to note that Fluke is required to enforce their trademark or they risk losing it.

Actually no, in fact it's counterproductive. That's a mindless aphorism thrown about to deflect blame from the actual people responsible for decisions, similar to "companies are legally required to maximize profit".

I get your perspective (after checking your profile). Is Louis CK counterproductive because he doesn't grab a pitchfork and head to Congress to reform copyright law? No. He sells his videos for $5 and asks you nicely not to copy them.

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.

It seems like you're mixing another comment of mine with what I wrote above. For what it's worth, I like Louis CK's approach - it looks like a great post-copyright business model.

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.

> 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.

Nope. This is known as "naked licensing",and can lead to loss of the mark.

Then maybe the implementation is a non-binding letter of understanding between the two companies, stating that they both believe their business areas and marks are sufficiently different to avoid confusion. Any court that does not respect trademark owners reaching their own thought-out amicable agreement is an unjust one.

Wrong: http://www.inta.org/TrademarkBasics/FactSheets/Pages/LossofT...

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?

Please read my follow up response (https://news.ycombinator.com/item?id=7439468). The legal environment is one specific context. I don't go around saying 'syntax error!' to anyone who misspeaks.

Your solution to this seems to be (morally) compulsory licensing instead of notifying customs authorities about the fact of an infringement. Exactly why should a firm grant a license to its direct competitor to make inferior-quality goods in the first firm's trade dress?

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.

You seem to be shifting the goal posts. The discussion above is around whether trademark law requires Fluke to take the action they took today. Not whether it's morally right, wrong or what reasons there might be for it or anything else. Just the implication by the poster above that somehow Fluke was forced to do what they did by trademark law.

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.

In this case, I do not believe that the firms are actually direct competitors. Fluke seems to somewhat agree, judging by this gesture of goodwill that they're giving Sparkfun.

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.

Fluke and the Chinese manufacturers of the cheap multimeters, who are the infringers in this case, most certainly are direct competitors. They are both selling multimeters, and the price differential is beside the point. Sparkfun is just a distributor, they're not engaged in trademark infringement and have just been caught in the middle. Fluke is buying itself some nice PR, but that doesn't alter the legal situation one whit.

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.

As the importer and contractor of the manufacturing, Sparkfun is the responsible party. First, the manufacturer just uses whatever colors/marking/customization that Sparkfun requests (note the Sparkfun logo on the meter). Second, trademarks are de facto irrelevant in China.

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.

You're right about Sparkfun being the responsible party - I misread the packaging, so sorry about that.

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.

> Fluke seems to somewhat agree, judging by this gesture of goodwill that they're giving Sparkfun.

No, Fluke figured $30k was a cheap way to bury the PR issue and not have Sparkfun selling Fluke knock-offs.

You can lose trademarks that are not defended or become generic terms but on the other hand I think that they can be licensed to particular companies/usages.

Allowing a company to use your trademark without entering an agreement is a bad idea.

absolutely wrong.

There are ways around that though. They can offer to license the trademark. Apple for example licensed the "ios" trademark from Cisco.


now let's see if that license can be used on a mythical "router" that apple builds.

I'll bet that license has a ton of restrictions.

So it doesn't matter that the 'mythical' Apple AirPort devices don't run iOS?

Why don't they protect their logo instead of something like "grey face, yellow casing"?

> Moving forward, SparkFun will change their DMMs to be red instead of yellow.

Amprobe might take issue with that: https://www.google.com/search?q=amprobe&tbm=isch

Red is also a well known Fluke colour. It's used in their "intrinsically safe" line.

I'm not sure if they have a patent on it right enough.

Craftsman multimeters are red. Hahaha.


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...

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 - definition #3

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


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.


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's not a patent.

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.

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.

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?

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.

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

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.

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.

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.

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

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

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

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.

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.

Wow ...

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