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$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."
Did Fluke actually request this? Or did Customs do this of their own volition?
If it's the latter, Fluke should step up and allow them to make a one time exception for this shipment. It would generate considerably goodwill for the company and show that they're not bullies keeping the little guy down.
If they DID request this, then fuck them all with a chainsaw, seriously.
I dream of starting a company that can innovate with new products. But I suspect the reality would be a nightmare of lawyers and hassles instead.
SJW's don't eliminate discrimination. They just expropriate it for themselves.
The Department of Homeland Security is nothing but a bunch of thugs. Having dealt with them before on customs, this is basically some government employee flexing their muscles because they like the power and have nothing better to do. The appropriate amount of boot-licking and obsequiousness (and tribute payment) is required in order to get it through.
Those look a LOT like a Fluke multimeter, in more ways then just the color. I find it hard to believe that isn't intentional.
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
Ask Apple how you can trademark rounded corners. I'm sure they have lots of insight on this.
For blue, red, green, purple, white, black, tan, clear, brown, striped, poka dotted, etc. multimeters, and de-facto own all the rights to create all multimeters?
Troll is not a replacement for I disagree.
I've trademarked black writing on a white background. Please destroy any materials that infringe on my IP
You can TRADEMARK just about anything. Copyrighting and patenting are harder, of course, but that's not what we're talking about here. Shit, you can even trademark a common word (like "Apple," as it applies to computers anyway) .
SJW's don't eliminate discrimination. They just expropriate it for themselves.
Ok, you can't send em back, and the gov't says they aren't legal here. Why not a third destination?
Those people who think they know everything are a great annoyance to those of us who do. (Isaac Asimov)
Schools are struggling to find the funds to replace textbooks, let alone put their hands on some good hardware like this, and we can't find some way to donate this hardware instead of destroying it? Who cares if the legal document states that no one over the age of 18 is allowed to posses it, at least let someone get some use out of it.
Talk about stupid.
Apparently, US customs are simply fighting the yellow multimeter peril!
Ezekiel 23:20
If they haven't talked to an intellectual property lawyer yet, they should do so immediately. Safety yellow on an electrical testing device is incredibly generic.
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
Sorry, I like SparkFun and all but this does look a lot like Fluke industrial design. Ok so the colour isn't EXACTLY the same shade of yellow, but if you removed the branding from it and asked somebody what brand it looks like they'll say Fluke assuming they've poked around the market any or are in the industry. Granted it would be cool of Fluke saying something like "OK This ONE time" since SparkFun is all about hobbyists who might eventually become Fluke customers. SparkFun should have thought of this before ordering a container full of them, pleading ignorance that your multimeter is DAMN CLOSE to somebody else's product and not expect trouble is dubious at best. It looks a lot like a Fluke 17b with out the buttons.
I notice that SparkFun Electronics is a registered trademark. I'm sure they'd have no problem with my competing companies, SporkFun electronics and Sp@rkFun Electronics.
In the law, ignorance is not an excuse and hasn't been for centuries if not millennia. You are responsible for what you sell and, yes, for better or worse, colors have been trademarkable for a while now. I know of several examples like T-Mobile's magenta and Reese's orange, and I'm not even a retailer.
I have no doubt that SparkFun would exercise its trademark against infringers, so I have little sympathy for their case even if their violation was unintentional.
"They were pure niggers." – Noam Chomsky
If your small business can't keep track of enough stuff to keep from infringing IP, then buy from suppliers who will indemnify you for IP infringement. Or just buy from reputable retailers.
You decided to get some sketchy Chinese meters from a company skirting the law to try to save some money or raise margins. And now it bit you. It seems like this is how the system is supposed to work.
http://lkml.org/lkml/2005/8/20/95
Any "hobbyist electronics retailer" attempting to sell a multimeter in the US knows -- or should know -- what a Fluke multimeter looks like, and any businessman or businesswoman knows -- or should know -- that there will be problems trying to sell a product that looks like the product with a dominant share of the market.
Also, you don't need "an army of consultants or attorneys to find this information." Trademarks are freely available from the USPTO web site, in searchable form. Anybody can look them up.
Finally, most business contracts between a manufacturer and a distributor will have an indemnification clause, in which the manufacturer warrants that the product has no intellectual property issues and, should a claim be made against the distributor, the costs associated with such claims will be borne by the manufacturer. If Sparkfun's contract for the Fluke knock-offs didn't have such a clause, I'm sure their standard contract will in the future.
I am holding in my hand at this very moment a grey faced yellow bodies multimeter which was made in china and sold at walmart. I guess laws only apply to the little guys.
-73, de n1ywb
www.n1ywb.com
It would be a hell of a lot easier to empathize with SparkFun, if they weren't being such whiny little bitches about the whole affair (which, FTR, is their own damn fault - Fluke's been around and using that same design scheme for decades).
Look - you didn't do your due diligence, and got yourself burned for it; suck it up, learn from your mistake, and move on with your lives.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
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?
But most Americans born here grew up with more honest set of retailers, more honest wholesalers, reasonably effective enforcement, they have not had this cheap imitation knock off problem. The worst you would see is the Walmart brand (Equate?) of nasal spray next to one made by J&J. If you had never gone home and opened a package of Cynthol bar soap and find inside a foul smelling skin abrading cake of caustic alkali with Sinthol stamped on it, you have not been affected by these knock-offs. So all the power to customs agents to spot the cheap knock-offs and take suo moto action to knock the imitations off the planet.
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
Anyway, how did all the other yellow meters get through customs??
Because Fluke's trademark specifically states "Color is not claimed as a feature of the mark" As such, it is difficult to see how Customs is turning them away for a trademark violation because of color.
http://www.usitc.gov/publicati...
"* Certain Digital Multimeters, and Products with Multimeter Functionality
Investigation No. 337-TA-588
(Publication No. 4210; December 2010)"
from http://www.usitc.gov/intellect...
(Warning 162 page pdf)
Basically Fluke was a party behind the Trade investigation as to importations of comparable-appearing knockoffs.
I have no horse in this race; I don't use multimeters and couldn't care less who wins (although I tend to be a free-marketeer, generally). Imagegoogling for both, some of them look remarkably similar. I'd say the block was justified. If a bunch got through before the ban was enforced, that doesn't mean the ban was unjust or arbitrary.
-Styopa
/Any/ attorney fresh from law school who has taken /one/ course in trademark law would know that there are circumstances where colors can be trademarked. No "army" needed here.
If Sparkfun has an issue with anyone, it would be with the manufacturer of those devices - not the countries that enforce IP laws.
Hard to say, but I imagine it has to do with the price they purchased them for being so low in the first place. The 30k figure Sparkfun has talked about appears to be the value they would have sold them for, not what they paid. I'm guessing they actually paid something closer to $5 per unit, at which point it very well could make more sense to destroy them and buy new ones with different colors.
You have to realize that these are VERY cheap products made in China, so the threshold for viable returns is probably very low, regardless of the reason.
That's like saying some company like General Motors owns the Bow Tie badge and no one realized it. There can be no instrument company in the world that is not familiar with Fluke products and their color scheme, and if they design products using that scheme then it's pretty clear they are hoping to use the scheme to entice buyers because it's associated with high end equipment. It doesn't matter if Fluke or customs blocked it. It was still a stupid thing to try.
I've used Fluke equipment for a very long time, before that Beckman products as well and unfortunately like anything in this arena (meters, test equipment etc.) as soon as they release a product nowadays it gets copied. A lot of the Fluke designs have literally been hijacked to the point that unless you closely look for the Fluke branding, you can't tell the difference until you get into a calibration test and I've seen the cheap imports fall flat in areas where it matters. For the average guy out there tinkering it doesn't matter but in high end manufacturing and testing, it does. It's akin to fake Rolex Watches, designer handbags and the like with feature/functions that have been carefully worked out including tolerances that can mean a product or test passes or fails. Because we're talking about multimeters here, It really is no different an argument than Cellphones manufactured by two different companies where one has patents or trademarks on their designs. These are the mechanisms allowed by law that allow these companies protect their IP but regrettably there are importers that will try and sneak their product in, taking the risk that Customs will confiscate the items. I realize Sparkfun just want to sell to enthusiasts out there but really, they should have checked before trying to importing them.
Harrison's Postulate - "For every action there is an equal and opposite criticism"
Maybe so, but I think the argument made in the original article is still valid. If you're going to copyright your color scheme, you better list a *specific* color shade. Simply declaring "yellow" or any other primary color to be "your copyrighted color" is far too broad a statement.
People who pay a premium price for a Fluke meter are usually well aware of what they're paying for. Just because a Chinese knock-off comes out with similar colors doesn't mean people would be fooled into thinking it was equivalent to a Fluke.
Trademark, not copyright. Though often lumped together along with patents under the heading of 'intellectual property' they are actually unrelated areas of law with little in common.
Have you noticed all the T shirts and other gear with NFL logos on them? Those are made and sold by other companies with the permission of the NFL.
What a trademark holder is not allowed to do is sit silently, allowing infringement, implying that it's okay while other people build businesses around the mark, then suddenly sue five years later. If you want to allow someone to use your mark in a certain way, you have to explicitly grant permission for a specific use for a specific period of time. That way no-one is confused as to what you're allowing.
Agreed, this is an attempt to copy Fluke's recent multimeter design.
It's not just yellow. It has the same color scheme, same display layout, similar fonts, same case taper as a real Fluke. Brand name in same location as is the model number and description. It was designed to look as much like a Fluke as possible.
If I saw the sparkfun multimeter sitting on a bench in my lab, I would think it was a Fluke until I got close.
Sparkfun knew this when they bought them. Their fault. If they did not know it was designed to imitate a Fluke, they are in the wrong business. "Other companies did it and did not get caught" does not make it right. They risked it anyway and lost. Complaining about the trademark is not the solution.
If you would actually read the trademark, it mentions dark gray and yellow in a specific, illustrated pattern. This knock off clearly copies it (whether on purpose or accident is immaterial).