$30K Worth of Multimeters Must Be Destroyed Because They're Yellow

An anonymous reader points out a post at the blog of Sparkfun, a hobbyist electronics retailer. They recently received a letter from U.S. Customs saying a shipment of 2,000 multimeters was being barred from entry into the country. The reason? Trademark law. A company named Fluke holds a trademark on multimeters that have a 'contrasting yellow border.' Sparkfun's multimeters are a yellowish orange, but it was enough for Customs to stop the shipment. Returning the shipment is not an option because of import taxes in China, so the multimeters must now be destroyed. At $15 per item, it'll cost Sparkfun $30,000, plus the $150/hr fee for destroying them. Sparkfun had no idea about the trademark, and doesn't mind changing the color, but they say restrictions like these are a flaw in the trademark system. "Small business does not have the resources to stay abreast of all trademarks for all the products they don't carry. If you’re going to put the onus on the little guy to avoid infringing IP then you shouldn't need an army of consultants or attorneys to find this information."

Comments

Re:Did Fluke request this?

[alen]

i don't know, but if you look at the pictures of both the sparkfun literally copied the color scheme

i don't know if they designed it or just sell some chinese copy, but they could at least have changed the colors

Re:Did Fluke request this?

[retchdog]

The thing is, allowing trademark violations to go unchallenged for no particular reason at all (in law, being kind is not a reason) will dilute the mark just as if they did nothing, or even worse. So, there is heavy incentive for them not to allow it, and they probably wouldn't.

From the actuall trademark document

[Dcnjoe60]

This is indeed odd. From the actual document of the trademark owned by Fluke it specifically states: Color is not claimed as a feature of the mark. Either there is some other reason the items are being refused entry or Fluke is falsely claiming a trademark infraction, at least if it is because a similar color yellow was used.

Besides, isn't it up to the courts to determine trademark violations, not customs?

Re:From the actuall trademark document

[DRJlaw]

This is indeed odd. From the actual document of the trademark owned by Fluke it specifically states: Color is not claimed as a feature of the mark. Either there is some other reason the items are being refused entry or Fluke is falsely claiming a trademark infraction, at least if it is because a similar color yellow was used.

That is not the "actual document of the trademark owned by Fluke," it is the USPTO's TSDR entry. You can download the actual documents by clicking on the "Documents" tab and downloading them. The actual documents do not disclaim color. In fact, if you look at the "Registration Certificate" for 2,796,480, there is no disclaimer of color.

Fluke is not falsely claiming a trademark infraction. A USPTO contractor has screwed up the electronic summary of the (then-official) paper record. Since the description of the mark specifically states a color scheme, it's pretty clear that there's a some sort of problem. You simply haven't taken the next step of looking at the actual record.

Besides, isn't it up to the courts to determine trademark violations, not customs?

One obtains a customs exclusion order from the US International Trade Commission, which functions as a so-called "Article I tribunal." ITC decisions can be appealed to the Federal Circuit Court of Appeals. Any way you slice it, a "court" has found a that there was a trademark violation. Sparkfun could appeal the application of that exclusion order to their meters (a protest under 19 C.F.R. 174), but it doesn't sound like they will.

Customs simply enforces the ITC's exclusion order. You might as well ask whether it's up to the US Marshals to determine whether someone is a fugitive, while ignoring that the police have already obtained a summons and the court has already issued an arrest warrant.

FYI, don't believe the "aww shucks, we're a small business" story. Sparkfun was eager to tout in 2012 that it had "more than 140 employees, revenues of more than $25 million and posted 128 percent revenue growth from 2009 to 2011." While the SBA may define a small business as any enterprise with fewer than 500 employees, that's a pretty substantial business in everyone else's eyes.

Re:Hoding a grey and yellow multimeter in my hand

[QuasiSteve]

Which one?

Kastar: http://www.walmart.com/ip/Kast...
Steren: http://www.walmart.com/ip/Ster...
ETEK: http://www.walmart.com/ip/Digi...
LANG: http://www.walmart.com/ip/A-E-...
Klein Tools: http://www.walmart.com/ip/Klei...
TM Atlantic: http://www.walmart.com/ip/TM-A...
Ideal: http://www.walmart.com/ip/Idea...
Universal Enterprises: http://www.walmart.com/ip/Univ...
Morris Products: http://www.walmart.com/ip/Morr...
or
ROLLS: http://www.walmart.com/ip/ROLL...
?

Re:Did Fluke request this?

[hermitdev]

Actually read the TFA (and the links to the trademark in question) and you can see that:

1. Fluke did not trademark yellow multimeters.
2. The yellow multimeters from a google image search bear no resemblance to the distinct Fluke branding.

From USPTO:

Description of Mark: The mark consists of the colors dark gray and yellow as applied to the goods. The dotted outline of the goods is intended to show the position of the mark and is not a part of the mark. Color(s) Claimed: Color is not claimed as a feature of the mark.

If you look at an image of SparkFun's multimeter, there is a striking resemblance. I have had a Fluke for over a decade now, and I love it. I also have an off brand that I got at RS that I kept in the car for roadside repairs, if necessary.

Re:Did Fluke request this?

[saleenS281]

So hobbyists in the electronics business have never heard or seen fluke? Seriously, that's what you're going with? ANYONE that has spent 30 seconds looking for a multimeter has come across fluke, and every one of their multimeters are the same color. You'd struggle to make something look anymore similar to their multimeters short of putting the fluke name on the front.

I'll give you a hint - the guy who works for sparkfun in the comments section of his own blog post said:

Yea, it’s hard to say whether Fluke has done such an amazing job at branding that we all think Fluke yellow is the color of DMMs or if they are simply capitalizing on a color arrangement we all generically know as ‘multimeter’.

They knew EXACTLY what they were doing.

Re:Did Fluke request this?

[LinuxIsGarbage]

safety.

Ok. I'll ask. What possible safety function does coloring a multimeter yellow serve? Do you need to see multimeters coming at you so you can defend yourself? Don't pick up a multimeter because it might bite you? "Red touch yellow, friend of fellow..."?

I think Parent means the meter is yellow (bright, easy to see) because it's a safety device. Eg: In industry multimeters are used to verify the lack of voltage before beginning work.

Re:Did Fluke request this?

[BlueStrat]

What possible safety function does coloring a multimeter yellow serve?

Being easy to find.

A meter "being easy to find" is not a safety function.

Says a guy that's apparently never been 10 feet down a very dark and cramped concrete-lined hole, troubleshooting and changing out a failed 480V 3-phase lift-pump motor and contactor assembly.

You really should avoid offering opinions on things whens it's glaringly-obvious that you know very little about them. It's like watching the guy who decides to do a belly-flop from 45 feet. It's just painful for everyone, even the observers.

I'm not being mean here. I'm hoping it sticks and contributes in some small way to you living a happier and more productive life.

"A man's got to know his limitations." - Clint Eastwood as "Dirty" Harry Callahan in "Magnum Force"

Strat