Trademark Insanity: Sparkfun Has To Destroy $30,000 Worth Of Multimeters Because They're Yellow [Updated]
from the this-is-stupid dept
As pretty much all of you have been sending in, our favorite open source electronics firm, Sparkfun, has found itself in the middle of yet another unfortunate intellectual property issue that highlights how broken intellectual property law continues to be. In short, SparkFun needs to pay to have $30,000 worth of multimeters (2,000 of them) destroyed because they're yellow and because trademark law is stupid. Basically, electronics maker Fluke holds trademark 2796480, which is described thusly: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.The trademark makes clear that it is not claiming a trademark on the color yellow, but rather dark gray and yellow applied to something that looks like this:
digital multimeters and products with multimeter functionality that have a contrasting color combination of a dark-colored body or face and a contrasting yellow border, frame, molding, overlay, holster or perimeter.And this is based on claims that other companies were violating that Fluke trademark we discussed above. As the folks at Sparkfun point out, this is all kinds of ridiculous and immensely damaging to them:
To be fair, the first point is slightly misleading. This isn't a color trademark like Tiffany Blue or the variety of other trademarks that have issued in the past (though many of those are ridiculous in their own right), but a specific trademark about how the color is used on a specific product. It's still ridiculous and makes no sense, but it's not directly comparable to color trademarks (which, again, are also ridiculous).Yellow is awfully broad: In my mind, multimeters have always been yellow. I’ve never had the opportunity to own a Fluke-branded DMM so I’m not sure where my brain picked up this association. I can respect trademarks and company branding and I respect Fluke’s reputation for high-quality multimeters. If Fluke wants to own a color I would expect the USPTO to require them to assign an exact color just like Tiffany’s did with Tiffany Blue. But allowing a company to trademark ‘yellow’ seems broad.
Wicked burden on small business: Trademark law is heavily skewed towards large business. 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. We will lose $30,000 on this shipment. But the cost of the legal legwork and manpower to make sure we don’t violate a future color seems unreasonable and simply not feasible.
No recourse: Our multimeters are actually kind of orange, not Fluke yellow. The document from the Department of Homeland Security is matter of fact. Where is the opportunity for recourse? What is the appeals process? Because of a $150 per day warehousing fee we are forced to decide quickly with limited legal guidance and mounting penalty costs.
Decide between bad and worse: So we really only have two options, ship them back or have them destroyed. Having them destroyed costs $150 per hour with no indication of how much time it will take to destroy 2,000 units. Returning them has been ruled out by the manufacturer in China because the import taxes in China are so steep (yay free trade) that bringing them back into the country to have them modified would be more expensive than paying for the return shipping and taxes. Between bad and worse, we have to have them destroyed. Sorry Earth.
Sparkfun is using the publicity around the blog post in the hopes that Fluke might grant them a brief license to save these multimeters, but admits that's unlikely. The company is also changing the color of its multimeters, but likely going to need to eat the cost of the ones about to be destroyed. Because trademark law is, yet again, pretty ridiculous.
Update: And Fluke is apparently going to give Sparkfun a bunch of its multimeters to do what they want with them.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: destruction, itc, multimeters, trademark, yellow
Companies: fluke, sparkfun
Reader Comments
Subscribe: RSS
View by: Time | Thread
Short term solution
[ link to this | view in chronology ]
Yellow mean multimeter
I doubt it was the yellow so much as the gray. But even there, the position of the gray differs from what is described in the design patent. This whole thing seems 100% bogus. Nobody is going to look at SparkFun's multimeter and think "Fluke".
[ link to this | view in chronology ]
Re: Yellow mean multimeter
Since actual data beats anecdotes, I looked at the online catalog of ELFA, the biggest distributor of such things around these parts of the world. They have 123 digital multimeters. 28 are Flukes, and only one is not yellow with grey front (it's red with grey front instead). Of the 95 which are not made by Fluke, only 1 is yellow and grey.
[ link to this | view in chronology ]
Re: Re: Yellow mean multimeter
I'm currently looking at a yellow and grey multimeter. It isn't a Fluke. (and that isn't a fluke in the other sense either because other meters I've had have been similar colours - none of them Flukes). By a pure fluke my wife just showed me a picture of a ruggedise mobile phone - guess what - it's yellow and grey. Those colours are a universal code for "ruggedised". The yellow has a practical value as a high visibility colour.
[ link to this | view in chronology ]
Re: Re: Yellow mean multimeter
Just google "multimeter".
The sponsored link shows 20 multimeters. 12 are yellow/grey only two are Flukes. Of the other 8, 5 are straight yellow.
[ link to this | view in chronology ]
Re: Yellow mean multimeter
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
So, yes, if you try to stiff "competition" by pretending to be the other manufacturer, then you should pay dearly for your failed scam.
I see such stunts time and again. Purdy (paint brushes) is another example of "borrowing" color scheme to scam the competition.
I don't feel sorry for the "victim" of alleged trademark abuse here. In fact, I would sue their butts off myslef.
[ link to this | view in chronology ]
Rounded corners and the color yellow.
It's more like a personal fashion preference than a way to identify something made by someone in particular.
Weak trademarks (and other forms of "intellectual property" run amok) are like the Rhine river robber barons that used to make you pay a toll every 5 miles. They're leeches that suck all of the viability out of the market and ultimately destroy it.
[ link to this | view in chronology ]
Re: Rounded corners and the color yellow.
IIRC you'll find a great discussion of this in the TMEP here: http://tmep.uspto.gov/RDMS/detail/manual/TMEP/Oct2013/TMEP-1200d1e1.xml (you may need to scroll down a bit to find it)
[ link to this | view in chronology ]
Re: Re: Rounded corners and the color yellow.
[ link to this | view in chronology ]
Re:
There is no indication whatsoever that was his motive. There's every indication it was not. The design is not a clone of Fluke's, the color is commonly used for multimeters of all brands, etc. Why do you think he's lying when he says he just didn't know?
[ link to this | view in chronology ]
Re: Re:
I'm pretty middle of the road on trademark and copyright maximalism, but in this case, I'm with the Big Bad Business. They've invested millions, for years, to establish their rep. This guy knew the rep. And chose Fluke's colors to ride the coattails.
[ link to this | view in chronology ]
Re: Re: Re:
No, it's because most multimeters are yellow, whether or not they're made by Fluke. Even the cheapie $9 multimeters are yellow. Yellow does not imply Fluke at all. It implies multimeter.
"This guy knew the rep. And chose Fluke's colors to ride the coattails."
I don't believe this to be true. I still don't see any hint that this was the motivation.
[ link to this | view in chronology ]
Re: Re:
...all because of Fluke's fame. Fluke was making distinct for long decades. Long before all the knock offs came around.
"Why do you think he's lying when he says he just didn't know?"
... because it is a long process from an idea to the store shelf. There is no way, you would invest in any knock off, not knowing what's there already on the market.
To be fair, all the professional Fluke owners laugh at cheap stunt. But still, they scoop part of the market that can't recognise difference.
And why would they be allowed? If I invented something and put my signature on it, I would be protected. Color is a signature here. There are plenty of color combinations left out there for multimeters (or any other product). In fact, if I created my new multimeter, it would have distinct color siganture competitive to Fluke's. That is how healthy capitalism supposed to work. Doesn't it?
[ link to this | view in chronology ]
Re: Re: Re:
And they failed. It's a very commonly used color.
"There is no way, you would invest in any knock off, not knowing what's there already on the market."
It's not that much of an investment, really. They're jsut reselling cheapie multimeters made by a different company, and it's not even the main business that SparkFun engages in.
In any case, I'm not saying they didn't know that yellow was used by Fluke. I'm saying that their claim that they didn't know about the design patent is completely plausible. The one multimeter I've managed to hold onto is a Fluke (because something that expensive doesn't leave my workbench) and I've been using it for years. I had no idea that there was a design patent, and if I decided to import cheap multimeters to sell domestically, I could see running into the exact same problem.
I'm not saying that the design patent should be invalid or anything (I don't know enough about that to have an opinion). But I am saying that given the history of SparkFun, the nature of their business and of this particular product, it's a serious stretch to assign nefarious intent to this.
[ link to this | view in chronology ]
Re: Re:
It's possible, but "no indication whatsoever" is crazy.
[ link to this | view in chronology ]
Re: Re: Re:
That seems the most likely explanation to me, yes. Using the yellow isn't damning at all. Yellow does not imply "Fluke". Where they went wrong is using the gray.
But consider -- this multimeter in no way competed with Fluke. Fluke makes high-end multimeters, not ones like these. These are entering a field that is absolutely saturated with makers of yellow multimeters at the same price point.
Also, this isn't anything like a major product on the part of SparkFun. They make their money from selling other things, not multimeters. The multimeter is just part of their "convenience" sideline, selling inexpensive versions tools needed to make use of their actual product line.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Exactly. They could have copied the shape, dimensions, colors, and almost everything else perfectly and it's still unimaginable they would have confused a single Fluke customer.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re:
When you say "pretending to be the other manufacturer", you mean the way they printed 'Fluke' all over the multimeter and its packaging right? Oh no wait, they didn't!
Are you seriously implying someone looking to by a Fluke is going to mistakenly buy this $15 one instead? Are you really saying Fluke buyers are that dumb?
[ link to this | view in chronology ]
Re: Re:
However, it looks like Fluke does think their buyers are that dumb.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Huh
[ link to this | view in chronology ]
Re: Huh
Glad you like it, but if I were you I'd take it back because it has no yellow on it. The yellow and grey is your assurance of Fluke quality and you got short changed. ;)
Seriously, I've got a much cheaper all yellow one which is probably older than yours. It is still accurate. Whats more, I've got an even older yellow and grey one which is also in great shape.
[ link to this | view in chronology ]
https://www.facebook.com/notes/fluke-corporation/sparkfun-we-hear-you/10151978262765592
[ link to this | view in chronology ]
Re:
https://www.facebook.com/notes/fluke-corporation/sparkfun-we-hear-you/10151978262765592"
Im am impressed with already high standard manufaturer.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
I think they should have offered to BUY the 'infringing' meters back from them.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
I too had never heard of this Fluke brand before.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
I doubt they're going to 'destroy' them as much remove the rubber exterior and put a red one on instead.
[ link to this | view in chronology ]
Re:
Not to mention that even if customs themselves could be persuaded to do this, they'd still charge $150 an hour to do it (same labor costs as for destroying them) and $150 a day for warehousing them during the change.
[ link to this | view in chronology ]
design feature
but if you need to deal with these meters, you can use this whole trademark fiasco to sell the meters, get the meters into your own warehuse as a 'team building exercise' one weekend get the office staff in (including purchasing officer) and unpack, spray or paint meters, it doesn't need to be a good job, you can even use children's watercolour paint, avoids OH&S problems. repack the meters (old fashioned thin plastic bag with instructions stapled on top)
sell on website at proposed price they would have been sold at anyway, have links to articles like this. there may be a few sympathy buys, it will all reduce the size of this disaster.
[ link to this | view in chronology ]
Re: design feature
Their only options are to destroy them or send them back to China.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
disable Java.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
On top of that, these particular meters aren't just colored like Flukes, they're clearly knockoffs of Fluke's design. I'm sure that's not because Sparkfun asked for it. These are almost certainly a commodity model designed exclusively by the manufacturer and sold under numerous brands - probably even as counterfeit Flukes in some parts of the world.
The problem is none of that makes this any more defensible. The people who might confuse one of these meters for a Fluke aren't the same people who are going to shell out several times as much money for the real thing. They are, in that respect, more like knockoff handbags. They might fool some people, but those people aren't Fluke's customers. Furthermore, the other Fluke design elements they're copying are functional, not decorative. They're not supposed to be relevant in the first place.
The best case scenario for Fluke is these meters were never competition for their products at all and removing them from the market has absolutely no impact on their market position. At worst they're alienating some number of electronic hobbyists, a community which seems to be growing steadily thanks to products Sparkfun is known for, like the Arduino. Some of those hobbyists will certainly decide to upgrade to better quality tools at some point and decide to look a lot closer at Fluke's real competitors than they would have otherwise.
The more they look, the more likely they are to realize they can go with one of those other brands for less money, and likely without losing anything that's going to make a difference for them. And whatever they end up with will probably look just as much like a Fluke as these Sparkfun units.
Smooth move Fluke.
[ link to this | view in chronology ]
Your tax dollars at work
Don't you all feel safer ?
Unfortunately, here in Canada, we're on the verge of passing a law that would have us doing much the same thing.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
One: The filing was in 2008, which means six years went by without a word until now. What changed and who ordered the stoppage?
Two: Fluke's trademark is in conjunction with the removable case and the color of the multimeter. In other words: Fluke is recognized for the casing and the yellow multimeter, not the yellow band around the meter.
Basically put: the colors are reversed and no one will mistake this multimeter as a Fluke.
I will say this: If Fluke was the one which ordered the ITC to intercept this shipment, they lost another customer.
[ link to this | view in chronology ]
https://www.sparkfun.com/news/1428
Sparkfun will be donating them, in turn, to schools and other learning insitutions.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Sounds like it would be more like 100, unless they sell $3000 meters. Still 100 is not that many.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The color Red means DANGER.
Crossing a Yellow tape with out permission may or may not get you fired.
Crossing a Red tape is an immediate firing and removal from site situation.
Unfortunately this may or may not [depending on the OSHA inspector] apply to instruments.
This raises some interesting issues. If you leave a yellow multimeter connected and your partner disconnects [under your instructions] does OSHA require management to fire him or not.
So I am on top of the boiler 10 stores up and I radio my coworker to disconnect the multimeter and bring it up with him and the OSHA inspectors sees him disconnect the meter what happens? Is he fired on the spot or not?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
yellow and gray meter.
[ link to this | view in chronology ]
Are people in charge really THAT stupid ?
Plus identifying a brand with a color is awfully dumb and shallow.. For one, what about color blind people, you're not going to get brand fidelity from having them identify a color to a brand.. Not to mention, it doesn't protect them from scam or buying counterfeits..
And what about someone who actually love that exact color and has it robbed from it ? That someone won't be able to sell its multimeters that color ever.. It might not seem like much, but considering that there were no real reasons why not in the first place..
Why do people want to control things nobody can without forcing everyone to comply using threats ? Mainly honest people I might add..
Why are these people bothering over stupid things like that, when counterfeiters are still universally unthreatened ? Wasn't the whole point of trademarks to avoid scams and counterfeiters ?
Why isn't it working then, even though we're at the point the measures are so severe that we shake down small companies over petty squabbles ?
I'm a man of results, and when I look at this, and I don't see any, I conclude its a waste of time and money.. GG no RE Trademarks...
Better find something else to differentiate from others.. I actually bought counterfeits on purpose on quite a few occasions, because the actual counterfeits were in some aspects better for my needs than the genuine products..
That goes to show what Trademarks are really stopping..
[ link to this | view in chronology ]
Re:
"But allowing a company to trademark ‘yellow’ seems broad. "
"This isn't a color trademark like Tiffany Blue or the variety of other trademarks that have issued in the past (though many of those are ridiculous in their own right), but a specific trademark about how the color is used on a specific product. It's still ridiculous and makes no sense, but it's not directly comparable to color trademarks (which, again, are also ridiculous). "
They didn't use the word "alarmed" but the situation was definitely mentioned.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Killed by Electic SPARK is FUN?
Is it FUN to get people killed by an electric spark using a sub-standard multimeter that falsely claim CAT3 rating and has a CE label that just only means "CHINA EXPORT"?
I support the destruction.
[ link to this | view in chronology ]
This is insanity in its highest form!!
http://www.youtube.com/watch?v=lkx2mxS_RSQ
[ link to this | view in chronology ]
smartphones, power banks, perfumes, t-shirts and lawns as well as most renowned brands such as
{distributor baju import | baju import murah | tas import murah | baju import korea | grosir baju import online}. You will also be able to find hot deals and discounts on many products, that you will not find at cheaper prices anywhere else.
[ link to this | view in chronology ]