And now we see that this isn't just a problem with software. Who knew?
e: Apparently everyone thinks I'm confusing a trademark with a copyright or a patent, but I'm not. We just got done with several weeks of people screaming their heads off about King's attempt to trademark the word "Candy".
In this thread, everyone is defending Fluke because this yellow outline is a distinguishing mark on their product, and these multimeters DO look like ripoffs. And you know what, I agree. But how is this any different from what everyone was up at arms about only a few weeks ago?
Because that trademark is overly broad, and thanks to that fact was being used to bully creators of small, non-confusing products. The fact that people are opposed to overly broad trademarks employed for anticompetitive purposes is hardly shocking. That doesn't mean people view trademarks as a general "problem."
3) Trademarks benefit the end-users in a very direct manner. If I buy a specific brand that's labelled then I can feel fairly confident it is the correct product. (Unless the company has changed quality on the same branded product, like Pyrex or Thinkpad.)
And UPS has a trademark on brown delivery trucks: http://www.ups.com/media/en/trademarks.pdf It's limited in scope and serves to distinguish the brand. Seems reasonable to protect it.
> 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.
This is the diagram in the trademark filing, describing what kind of yellow border is covered:
My current multimeter is blue. The previous one was yellow. It's predecessor was black.
In any case, the punishment seems a little harsh. They could probably arrive an arrangement where the yellow parts would be replaced by some other color and the multimeters could still be sold. Warning shots are acceptable practice.
I agree that having to destroy a shipment of perfectly usable multimeters sucks, but this seems like a pretty clear cut case of trademark violation to me. That multimeter really does look like a Fluke multimeter (see https://www.google.com/search?tbm=isch&q=fluke+multimeter). It was probably designed that way on purpose, probably because Fluke has a reputation for manufacturing high-quality multimeters, and someone could confuse it with a Fluke multimeter at a glance.
Multimeters here in the UK are almost always yellow (or red less often). They've been mostly yellow as long as I can remember and I've never heard of Fluke.
@phaemon (HN please increase your comment thread depth)
a) That's in the UK where Fluke doesn't have the same protections.
b) Those are newer, cheap, meters aping the design of Flukes, for that search to mean anything it should look back before Fluke's popularity or at least before they started using the current trademarked design.
c) Past just the first page the split gets much more even.
You just need to wait a bit before replying. The link takes some time to appear.
Your claim that they're "aping the design of Flukes" is unsupported. I haven't seen any evidence that Fluke invented that design or colour scheme, rather than it becoming a fairly common format for multimeters and then Fluke deciding to copyright the design.
A lot of older multimeters look like this: http://www.eevblog.com/forum/chat/show-your-multimeter!/540/ or something similar at least once handheld meters with multiple modes started to become an actual item. That whole thread is a decent cross section of multimeters, though it's skewed towards nice older meters as opposed to lower grade meters.
Essentially any multimeter design with a dark body and yellow or orange surround would look just as much like a Fluke multimeter - scroll down to Exhibit 1 in the PDF, they haven't exactly been consistent in the design of their multimeters. (Probably any design with a red surround too since some of Fluke's multimeters have those.)
On the other hand, there's strong evidence that Fluke is using excessive anti-competitive practices to manipulate multimeter prices. Evidence:
1) Multimeters can be made for $10 or $15, but Fluke continues to dominate the market with equivalent meters costing 10x more. And don't tell me that these basic multimeters incur significant R&D costs.
"Guilt should be determined in retrospect based on material gain." -- The gold standard for judging extremely powerful companies.
"there's strong evidence that Fluke is using excessive anti-competitive practices"
That's a totally different "crime" if you want to call it that. Has nothing to do with whether a company has the right to trademark a particular design which in this case they apparently do.
There's nothing particularly anti-competitive about not letting competitors use a particular easily identifiable color scheme associated with your product, largely because it has absolutely no functional impact on the product (and in any case, the product is not one where appearance is typically a factor in peoples' purchasing decisions).
The fact that Fluke can sell $150 multi-meters when they can be made for $15 is because of the substantial value people attach to branding. $100 Ralph Lauren jeans are made for $10 in Vietnam or wherever, and the only piece of that product protected by trademark is the little RL label (fashion designs cannot be protected). But that's all it takes.
Yellow and black is probably the closest thing there is to a generic high-contrast colour scheme for multimeters though - everything is associated with one or more manufacturers. Agilent are orange and black, Bosch are green and black or green and dark green, and I think there are companies that could reasonably lay claim to red and blue. Meanwhile black and yellow have long been generic multimeter colours - since well before Fluke moved to their current scheme, I think.
that brings up another good point: what happens when there are (say) 8 different major manufacturers and no colors left?
Is it then impossible to sell a product because it would always interfere with someone else's color?
BTW, I agree with other EEs, the Sparkfun meter is not "really great high-quality" as they claim. It will suffice for hobby use, but Fluke's markup is based on having additional quality, not brand recognition.
1) You can't just apply to protect an arbitrary color. You need to show secondary meaning (i.e. the market associates the color in a certain context with your brand). It is unlikely for that to happen with more than one brand in a particular space.
2) The color can't be functional and can't affect the quality or value of the product. So Apple can't trademark aluminum-colored laptops, nor can you trademark yellow or orange traffic cones.
3) With respect to running out of colors, that issue is addressed on pages 168-169. The gist of the argument is that if people "use up" the high-contrast color schemes, than not being able to use some mark will put competitors at a functional disadvantage, which will invoke the functionality bar mentioned in (2), invalidating the other color marks.
"closest thing there is to a generic high-contrast colour scheme for multimeters"
Lets imagine the outcome of two theoretically unrelated possibilities:
1) For safety reasons someone (who?) has purchased an OSHA regulation which now requires that all electricians use high contrast yellow multimeters, yellow indicating their, uh, safety-ness or something.
2) Fluke has paid the .gov to be the only legal yellow multimeter supplier.
I know #2 is true. I suspect but have no evidence #1 is true.
What a pointless thing to enter into your widely connected information appliance. If you think it is true and has some merit as an idea, spend the couple minutes to actually inform us, alternatively just don't bother telling us what you think might be true.
This is not only unsubstantiated handwaving, but also totally illogical. Maintaining a trademark costs about $500 every ten years, and it doesn't cost that much more to file. So your #1 is made up, and your #2 is totally gutless.
If you open up the case on a Fluke and compare it with a cheaper one, you'll see there's significant differences in construction and design. This isn't because Fluke did it just to justify their higher cost - it's different because it needs to be, to give you safe operation, accurate results, and long life.
I've been through any number of cheap multimeters over the years and finally broke down and bought a Fluke. It's been absolutely solid. Worth it.
Multimeters can be made for $10 or $15, but Fluke continues to dominate the market with equivalent meters costing 10x more. And don't tell me that these basic multimeters incur significant R&D costs.
You've obviously never done any serious electrical or electronics work then. The reason they're so expensive is four reasons:
1. Mains and high voltage work. If you're working with high voltages or massively different potentials, Fluke actually design the boards and isolation circuitry properly. You're not going to get electrocuted by a Fluke meter. It doesn't even take a high voltage, just a bad earth to kill you. Cheap multimeters and even mid range ones tend to ignore this fact in favour of cost.
2. Explosion resistance. If you stick your cheap multimeter in resistance mode and whack ot across a 400v 30A supply its going to blow your hand off. No joke. Fluke - dead meter by design or absolutely nothing and it still carries on working.
3. Reliability. I have a 1989 Fluke 87 that cost me a small fortune. It works fine today, still handles calibration perfectly and is pin sharp and accurate. Other vendors fall to bits, drop out of calibration ranges and pack in completely. I know because I have three meters at any time and the only ones that survive are flukes.
4. They have lesser effect on the circuit you are measuring because the input stage is better designed.
So you're merely putting your life in the hands of a $10 meter.
My current fluke cost me £435 and it was worth every damn penny
Edit: adding some more as I'm not posting this from my phone now:
5. Cheap meters can't do true RMS measurements.
6. Cheap meters have probes without correct insulation.
7. Cheap meters have probes which fall to bits and expose the conductors.
8. Cheap meters have less probe/connection options which are required for more than just passive metering.
9. Cheap meters can't be calibrated at all by calibration services as there is nothing other than a single master voltage reference inside which is usually not a constant current or voltage source but a resistor/voltage divider across the reference voltage. This can drift as batteries drain for example.
10. Decent meters have a better count i.e. 0.00000 vs 0.00 on the displays.
I could go on forever at why a $10 meter is a joke.
As a consumer, I find it confusing when "cheap" (in both senses of the term) meters knock off the Fluke visuals.
My first Fluke multimeter was a hand-me-down from my father, and he had made it clear how it was a better instrument. At the time, there were no "Fluke yellow" instruments on the market. They were generally considered ugly.
Fast forward through the 1990s and I'm in a builders supply shop looking at meters. I grab what I thought was a Fluke, got home, and only then realised I had a cheap knockoff. Yes, my fault for not reading, but a large number of second generation tool users have been raised to invest in the products of a few companies that have maintained solid reputations.
The Fluke 25 and 27s could be had either in fading black or get-dirty-yellow and fading black. Both came with decaying LCDs for no additional cost.
They definitely used yellow and black in the mid-to-late 1980s, primarily on "ruggedized" field gear. Bench gear tended to look pretty much like most bench gear, as far as I can recall.
I've had a Fluke 87 for years, and one day I was testing inrush current draw on something and the meter stopped working. Why? Because I was using the 400mA fused port, and I'd put ~700mA through it.
For some reason it was that detail and sensitivity that made me realize just how precisely made meters like that are. Thankfully it was just a $7 fuse to fix it.
If they are able to take higher price with only the brandname why shouldn't companies be allowed to do that?
Also maybe there are some other issues at play with precision, calibration and/or taking higher voltages/amperage? Or just not blowing up if you try to measure the wrong circuit with way too much power?
>Multimeters can be made for $10 or $15, but Fluke continues to dominate the market with equivalent meters costing 10x more.
Depends what you mean "dominate the market", I guess: go to Amazon or Radio Shack, and most of the multimeters are the cheap and non-Fluke.
Also: Fluke does certainly charge a premium, but they are also not equivalent to the $10 meter. Fluke uses higher-quality (and thus more expensive) components, and it definitely costs them more than $15 to manufacture. This affects the actual electronics to the case to the probes to the buttons.
If you use your meter to measure your batteries and the occasional resistor, you probably don't care. But if you use the meter often, you may start to notice the difference, and that's why people are willing to pay that higher price--it really is worth it to some.
If they're being anti-competitive then they're doing a completely shit job of it. There are about a million models of cheap multimeters available for purchase from about a million different retailers.
But should you really be allowed to trademark industrial design? Consider Dell XPS ultrabooks. They are obviously designed to look like a Macbook, but with a Dell logo instead of the Apple logo (http://cdn-static.cnet.co.uk/i/product_media/40002464/image3...). Or think about sport cars, Ferrari has a trademark for their horse logo, but they don't have a monopoly on "a sport car painted red".
I think that is the ideal tradeoff---the logo lets a consumer know what they are buying, but you should still be allowed to buy cheap products that look stylish...
Why would this be different? Using a known, good name brand like Fluke or T-Mobile... and diluting it's name by making confusing, derivative and lesser products.
Using the color yellow shouldn't be off limits... but using yellow (or magenta) to confuse consumers should be.
Industrial design cannot be protected, but trade dress can. Trade dress protection is available when a particular, arbitrary and non-functional, design becomes distinctive of a product. For these aspects of design to be protected, it must actually be distinctive of the product (i.e. you can't just claim a mark on the gray/yellow combination, but you have to show, usually through surveys, that the market identifies that design with your product).
Industrial design usually won't qualify because it's functional. The color comes from the use of aluminum, aluminum is used for its structural properties, particular colors have more aesthetic value in the market, etc. Trade dress has to be more specific, not functional, and arbitrary.
A classic example is pink for Owens-Corning insulation. It's a totally arbitrary color choice for a product where aesthetics doesn't factor into buyers' choices, and had become strongly associated in the public with Owens-Corning's brand. If there was a functional reason for the pink color, or it was a situation where people would prefer a certain color for aesthetic reasons, the design choice wouldn't have been eligible for protection.
A second example of trade dress is Coca-Cola red and white with the cursive font. For instance, this shirt [1] in red almost certainly violates Coca-Cola's trade dress.
In the case of the shirt, there isn't confusion about if it is a soft drink, but a lawyer could successfully argue that a customer might buy the shirt thinking it was a coca-cola shirt. If the coca-cola trade dress did not exist, it is extremely unlikely that a shirt with that design would be marketed.
I'm not a lawyer, but I remember being told during an introductory class to business law in school that the definition of what makes a trademark can be whatever is considered to be so tied to the brand identity that people would immediately assume that the product belongs to the brand.
In the case of the Macbooks vs Dell XPS ultrabooks you could argue that what makes people recognize a Macbook is as much the glowing white apple logo as the aluminum case so people are not being fooled when they see a Dell XPS into thinking it's a Macbook.
Similarly, people don't immediately assume that a sport car painted red is a Ferrari. But if they were to see a car with a Ferrari logo (regardless of its color) they would most certainly assume that it's a Ferrari.
In short, it's my understanding that trademarks are by definition somewhat subjective. However I believe that the intention is a good one, as it protects as much customers than brands.
I was just pointing out what my understanding of a trademark is and how I think it wouldn't apply for the Dell vs Macbook example.
In any case, I don't think I'm qualified to have an opinion in the case being discussed here. Both because my understanding of trademark law is just a very general sense of what it is supposed to stand for and because I have absolutely no notion of what are the multimeter brands out there and what their designs look like.
For what it's worth, all the multimeters I recall using at school were either all yellow or all black and I have the feeling they were always the same brand although I don't remember what that was (I studied in Europe)
I think that a better example is Coke -- their bottle shape is a user-friendly design that is easy to hold onto, but more importantly it has become an iconic symbol of Coke the brand.
I think in the case of Apple, they iterate so often on basic laptop design that having trademarked trade dress around a laptop would be counter-productive. They always want their devices to be thinner and lighter, and that requires fundamental changes to the design (wedge shapes, unibody, etc)
With the Dell laptop, what really makes it look like Apple? It's silver and thin. There are literally dozens of vendors shipping thin, silver devices.
I disagree. If Fluke is known by their color scheme, and they are known as a quality product, then they have a valuable reputation to protect. If a friend of mine gets the crappy $15 DMM that "looks just like" my $200 Fluke, then wonders why it isn't accurate, breaks after a couple of months, etc, then Fluke is the one who loses, not Sparkfun.
Have you looked at a Fluke next to the SF DMM? They don't look like Flukes. Flukes have a very thick border visible from the front in a very bright yellow. The SF on has a very thin visible orangey yellow border caused by the back shell. The faces aren't similar at all beyond a large dial and display. Very different designs.
Except the non-Fluke devices don't have FLUKE across the front of the device, nor across the back of the yellow case.
Most people glancing at it are going to see a multimeter, not a fluke. They would look for some kind of Fluke branding, and a yellow bezel with grey front plate is not that, for signs of flukeness.
Especially in the red sparkfun card it is pretty clear that these are not fluke. I find it hard to understand that anyone would think this is a fluke device with even cursory inspection.
Edit: your google images link is interesting. It shows some fluke devices being in red, not yellow, cases / bezels.
Removing the word fluke from the search terms returns many devices that are either all yellow, or all grey, with a few other colours, and some that are grey in a yellow case. Many of the grey and yellow devices are not fluke devices.
It'd be interesting to see how many devices were using dark grey in yellow before 2000.
I clicked on ones with what I judged to be a "contrasting yellow border" and only about 50% of them were actually Flukes. Seems this trademark is not evenly enforced.
There needs to be more to a patent than a primary color. Should car manufacturers be able to patent "black" cars? What happens when all primary colors have been patented?
I'm gonna play devil's advocate: That looks like a Fluke DMM knockoff. They could have easily gone with red, orange, green, or some other color I'm sure.
It would be nice if they got a warning first though.
To a moron in a hurry, it would look exactly like a Fluke product. This is exactly what trademarks are there to protect against, and Fluke is absolutely correct in their actions to protect their brand. This will likely blow up in Sparkfun's face, and rightly so.
Maybe if they went red or blue, some other company would come after them.
The issue is trademarking a very generic color/look. How many manufactures can exist without "Your red looks too much like mine, I'm suing you"
Other manufacturers have their own colors. Orange would be an Agilent knock-off, red Amprobe, blue Metrix, green Gossen. Should you check to see if they have all copyrighted their color scheme - or only a market leader ?
Trademarked, not copyrighted. And... maybe yes you should check to see if your product (coincidentally or not) happens to look an awful lot like the market leader?
Red especially is used by many companies for DMMs, it's a safe color. There's also different hues you can use, maybe burgundy, or even stripes. My point is, this color yellow is similar to Fluke yellow, and that's without proper lighting or color calibration.
That's pretty interesting to me because when I read the word "multimeters" in the title I instantly thought of a yellow device, even before I saw "contrasting yellow border." Fluke did a good job there and I think that in this case it's actually a pretty valid point.
Also - how long have Fluke been selling their yellow devices?
Or maybe actually you think of yellow devices because you saw plenty of non-Fluke yellow multimeters and now letting them appropriate the yellow color everyone associated to multimeters is unfair ?
I learned about Fluke making good multimeters probably about 17 years ago, in a student job. I'm pretty sure it was already yellow (and thus before they applied for the trademark).
Remember they're not claiming the color yellow, they're claiming the contrast between the body and the border. An all yellow multimeter wouldn't be infringing.
Oh yeah that's a good point! That does change it quite a bit, as I wouldn't see, say, a lime green and yellow-bordered device and instantly think "Oh yeah, that's a multimeter" automatically.
Hmm a fair point. Honestly, I always assumed that yellow was sort of an industry standard for multimeters so that they would be easily recognizable say in darker spaces where electricians may not have great lighting.
But you could still make a multimeter that isn't "Yellow border with dark-grey face". You could make an all-yellow device. Or invert the colors (yellow face grey bumper). Or use any other color for either the face or the bumper.
I sold Fluke meters from 1990-96. They were mostly dark grey with a yellow bumper, and the meter in this article looks like a Fluke. Interestingly, my 20 year old Fluke 73 (which still works great, second battery) is only grey with no yellow. I would have to think that within Sparkfun with its 100+ employees doing electronics that they had to know it looked like a Fluke.
They are expensive, but if you use a meter everyday you probably have one. Its a good tool. Mine has taken a lot of abuse.
> 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.
Aside: I can think of plenty of fun ways to quickly destroy 2000 cheap multimeters that would not cost $150/hour.
Why couldn't they just print up and ship out 2000 very cheap blue stickers which were intended to be put on the devices before being sold? Problem solved?
Also if they just reverse the color scheme then the trademark will not be violated and people will still associate yellow with high-quality devices.
Just as an object can have many references in typical programming languages, it is the case that an entity can have many different names in the “tradespace” and you don’t always get to decide what name consumers decide to use.
Let us take it as a given that within this particular tradespace, “contrasting yellow border” and “Fluke” just happen to be to references for the same thing, in this case a brand. But that also means that the brand can be damaged through either reference, so it’s incumbent upon the company that depends on that brand to guard those references to the brand.
What gets me is that the agent who inspected the packaging knew about this trademark. There must be a very large number of such trademarks and I doubt all the agents know all of them so for the agent who knew about this trademark to be the one who inspected the shipment seems like really bad luck.
I doubt agents flip through recent filings, memorize a hand full and just get lucky. More likely Fluke or their lawyers have some way to provide alerts to US Customs.
As I read the article I wondered if the inspection was a result of a complaint on Fluke's part and as a result it was a case of justice by money and power?
More generally, I wonder how is it possible that inspectors are expected to deal with all the grey market goods that could be entering the border? Perhaps, a better example are children's toy jewellery which on numerous times have been found to have toxic levels of chemicals (eg. lead to levels high enough to send children into hospitals). Do the inspectors actually test for lead, or is their some sort of certification paper that is required?
What about those cheap electrical parts that you can buy (e.g. computer/iphone power adapters). I read a tear down report stating that these were unsafe because wiring not done to safety codes, so who is responsible for inspections before they enter the border?
The general case is complex, and I've never been able to read how the process is handled, so I assume given the quantity of products being imported they are often priced so cheap because they never go through the QA and safety standards that would be required if they were manufactured here. --Another example of pricing that doesn't factor in the total cost of the good, that is Chinese toys are cheaper than local because they aren't tested to our codes thereby avoiding whole cost structures that local companies incur resulting in cheaper products yet overall they are more expensive to society because 1% of buyers end up in the hospital and incurring those costs.
There is a really interesting NPR "Planet Money" podcast where they talk to customs folks about the import process. (They were tracing the supply chain for a t-shirt) Customs agents have lots of obscure knowledge about these things.
I read it as no specific single color(s). Rather any yellowish color and any dark greyish color. Otherwise they'd have to list the specific pantone(tme) or whatever for the colors they are claiming.
I would agree that you can trademark an appearance but yellow is not any kind of identifiable color. This in my mind would make a trademark too vague to hold up in court. But my mind != stupid US government agency. I wonder if you can trademark objects with colors outside human vision. "I'm sorry sir your multimeters glow in the ultraviolet and we own that trademark."
It is also unreasonable that there is no option once seized to have it ship to a country other than the origin. After all it may very well be legal in Canada or Poland or somewhere.
> Small business does not have the resources to stay abreast of all trademarks for all the products they don’t carry.
I agree that this sucks for Sparkfun, but at some point someone had to think these look a lot like Flukes' multimeters. If you ever find yourself thinking 'this product I'm about to import looks a LOT like $major_market_player's product' then take a second to look up their trademarks. You don't have to stay up to date on every trademark but at least do a cursory search before a big commitment..
"Between bad and worse, we have to have them destroyed. Sorry Earth."
Sorry Earth indeed. Shit like this probably happens every minute of the day, and it probably cancels out everyone's cumulative efforts towards a more sustainable society. Destroying working products is a gratuitous waste that should be illegal, and that illegality should supersede any trademark law violation.
Why not order SparkFun to spray paint them black within a number of days instead?
Everyone is viewing this as a cloud, but I think, in spite of the costs and legal headaches, Sparkfun has a great opportunity for a silver lining lying right in front of them.
Call it "The Sparkfun Multimeter Casing Challenge". Mention their existing industrial design issues. Call on their users (more than a few of which have a 3D printing background) to design a multimeter housing that's unique, and reflects their brand. If they could wangle it, they could even yank out their DMM circuitry from the import-restricted DMMs and send the guts to the contest entrants to make working prototypes.
That would be a great way to get design done for free by people excited about the Sparkfun brand.
Seems like switching from yellow to red still leaves them open to law suite. They'll be less likely to lose the suite, but I don't think the court will throw it out based upon the trademark wording. Just make it black.
I'm sure it'd be less than $15 dollars a piece. Hire someone to unpack them at $8/hr, someone to paint them at $8/hr, and someone to bag them at $8/hr, and I'd bet you could go through 30+ an hour, which would come out to $0.80/pop for labor. Plus transport and paint. Sure, it costs them, but keep in mind they don't have to make profit, they just have to make back more than the cost of a total loss for it to be worth it. Selling every single one for a few dollars loss should be better than losing them all for a more $$$ loss...
Colors in trademarks are tricky. I would argue that the colors of a tool or measurement device serve a functional purpose, namely visibility and outline recognition in low-light conditions, so if I were judging this trademark, I'd ask a few questions:
- Is the yellow used by the competitor distinguishable by the human eye from the yellow used by Fluke?
- Is the yellow used by Fluke distinct from colors commonly used on similar items to improve visibility, or a color not commonly available in the source materials for similar products?
If Fluke buys off-the-shelf plastic pellets, with the same colors used by everyone who makes colored plastic things, they can hardly complain when natural, functional choices in product design replicate their claimed color mark.
If they claimed a very specific, non-standard yellow, like rgb(197,247,45), and a specific contrast color, like rgb(0,53,117), I'd defend it in a heartbeat. But let's be honest. If you sell plastic pellets in bulk, and you could only stock 6 colors, they would be transparent, white, black, cyan, magenta, and yellow. At minimum, the customer could melt and mix a specific color within a reasonable gamut. Claiming 2 of those primary pigment colors as trademarked so no one else could use them without significant additional expense is a bit ridiculous.
But the wheels of justice have many irregularly shaped cams and cogs, so my common sense approach almost certainly would not have merit in any actual courtroom.
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[ 3.0 ms ] story [ 214 ms ] threade: Apparently everyone thinks I'm confusing a trademark with a copyright or a patent, but I'm not. We just got done with several weeks of people screaming their heads off about King's attempt to trademark the word "Candy".
In this thread, everyone is defending Fluke because this yellow outline is a distinguishing mark on their product, and these multimeters DO look like ripoffs. And you know what, I agree. But how is this any different from what everyone was up at arms about only a few weeks ago?
1) They are arbitrary and not functional. It doesn't make a difference to the multimeter whether it's yellow or red.
2) Silicon Valley has an existential interest in the $500+ billion advertising industry, which is built on trademarks and branding.
> 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.
This is the diagram in the trademark filing, describing what kind of yellow border is covered:
https://cdn.sparkfun.com/assets/home_page_posts/1/4/2/8/Roug...
What could be more clear and limited in scope?
In any case, the punishment seems a little harsh. They could probably arrive an arrangement where the yellow parts would be replaced by some other color and the multimeters could still be sold. Warning shots are acceptable practice.
Lots and lots of not-yellow multimeters, and the dark-with-yellow-surround ones do generally seems to be Flukes.
But not quite all. There are some exceptions here: http://www.eevblog.com/forum/chat/show-your-multimeter!/315/ but I think they may all be recent enough to postdate Fluke's trademark (which I think was granted in 2003).
Maybe they did invent that scheme and everyone copied them, but if so, they're not enforcing it in the UK.
a) That's in the UK where Fluke doesn't have the same protections.
b) Those are newer, cheap, meters aping the design of Flukes, for that search to mean anything it should look back before Fluke's popularity or at least before they started using the current trademarked design.
c) Past just the first page the split gets much more even.
Your claim that they're "aping the design of Flukes" is unsupported. I haven't seen any evidence that Fluke invented that design or colour scheme, rather than it becoming a fairly common format for multimeters and then Fluke deciding to copyright the design.
A lot of older multimeters look like this: http://www.eevblog.com/forum/chat/show-your-multimeter!/540/ or something similar at least once handheld meters with multiple modes started to become an actual item. That whole thread is a decent cross section of multimeters, though it's skewed towards nice older meters as opposed to lower grade meters.
1) Multimeters can be made for $10 or $15, but Fluke continues to dominate the market with equivalent meters costing 10x more. And don't tell me that these basic multimeters incur significant R&D costs.
"Guilt should be determined in retrospect based on material gain." -- The gold standard for judging extremely powerful companies.
That's a totally different "crime" if you want to call it that. Has nothing to do with whether a company has the right to trademark a particular design which in this case they apparently do.
The fact that Fluke can sell $150 multi-meters when they can be made for $15 is because of the substantial value people attach to branding. $100 Ralph Lauren jeans are made for $10 in Vietnam or wherever, and the only piece of that product protected by trademark is the little RL label (fashion designs cannot be protected). But that's all it takes.
Is it then impossible to sell a product because it would always interfere with someone else's color?
BTW, I agree with other EEs, the Sparkfun meter is not "really great high-quality" as they claim. It will suffice for hobby use, but Fluke's markup is based on having additional quality, not brand recognition.
1) You can't just apply to protect an arbitrary color. You need to show secondary meaning (i.e. the market associates the color in a certain context with your brand). It is unlikely for that to happen with more than one brand in a particular space.
2) The color can't be functional and can't affect the quality or value of the product. So Apple can't trademark aluminum-colored laptops, nor can you trademark yellow or orange traffic cones.
3) With respect to running out of colors, that issue is addressed on pages 168-169. The gist of the argument is that if people "use up" the high-contrast color schemes, than not being able to use some mark will put competitors at a functional disadvantage, which will invoke the functionality bar mentioned in (2), invalidating the other color marks.
Lets imagine the outcome of two theoretically unrelated possibilities:
1) For safety reasons someone (who?) has purchased an OSHA regulation which now requires that all electricians use high contrast yellow multimeters, yellow indicating their, uh, safety-ness or something.
2) Fluke has paid the .gov to be the only legal yellow multimeter supplier.
I know #2 is true. I suspect but have no evidence #1 is true.
What a pointless thing to enter into your widely connected information appliance. If you think it is true and has some merit as an idea, spend the couple minutes to actually inform us, alternatively just don't bother telling us what you think might be true.
I've been through any number of cheap multimeters over the years and finally broke down and bought a Fluke. It's been absolutely solid. Worth it.
You've obviously never done any serious electrical or electronics work then. The reason they're so expensive is four reasons:
1. Mains and high voltage work. If you're working with high voltages or massively different potentials, Fluke actually design the boards and isolation circuitry properly. You're not going to get electrocuted by a Fluke meter. It doesn't even take a high voltage, just a bad earth to kill you. Cheap multimeters and even mid range ones tend to ignore this fact in favour of cost.
2. Explosion resistance. If you stick your cheap multimeter in resistance mode and whack ot across a 400v 30A supply its going to blow your hand off. No joke. Fluke - dead meter by design or absolutely nothing and it still carries on working.
3. Reliability. I have a 1989 Fluke 87 that cost me a small fortune. It works fine today, still handles calibration perfectly and is pin sharp and accurate. Other vendors fall to bits, drop out of calibration ranges and pack in completely. I know because I have three meters at any time and the only ones that survive are flukes.
4. They have lesser effect on the circuit you are measuring because the input stage is better designed.
So you're merely putting your life in the hands of a $10 meter.
My current fluke cost me £435 and it was worth every damn penny
Edit: adding some more as I'm not posting this from my phone now:
5. Cheap meters can't do true RMS measurements.
6. Cheap meters have probes without correct insulation.
7. Cheap meters have probes which fall to bits and expose the conductors.
8. Cheap meters have less probe/connection options which are required for more than just passive metering.
9. Cheap meters can't be calibrated at all by calibration services as there is nothing other than a single master voltage reference inside which is usually not a constant current or voltage source but a resistor/voltage divider across the reference voltage. This can drift as batteries drain for example.
10. Decent meters have a better count i.e. 0.00000 vs 0.00 on the displays.
I could go on forever at why a $10 meter is a joke.
My first Fluke multimeter was a hand-me-down from my father, and he had made it clear how it was a better instrument. At the time, there were no "Fluke yellow" instruments on the market. They were generally considered ugly.
Fast forward through the 1990s and I'm in a builders supply shop looking at meters. I grab what I thought was a Fluke, got home, and only then realised I had a cheap knockoff. Yes, my fault for not reading, but a large number of second generation tool users have been raised to invest in the products of a few companies that have maintained solid reputations.
From what I can tell, in the time period you're talking about even Fluke meters weren't "Fluke yellow" though - e.g. http://www.stevenjohnson.com/pics/why-i-buy-flukessm.jpg
They definitely used yellow and black in the mid-to-late 1980s, primarily on "ruggedized" field gear. Bench gear tended to look pretty much like most bench gear, as far as I can recall.
For some reason it was that detail and sensitivity that made me realize just how precisely made meters like that are. Thankfully it was just a $7 fuse to fix it.
Also maybe there are some other issues at play with precision, calibration and/or taking higher voltages/amperage? Or just not blowing up if you try to measure the wrong circuit with way too much power?
Depends what you mean "dominate the market", I guess: go to Amazon or Radio Shack, and most of the multimeters are the cheap and non-Fluke.
Also: Fluke does certainly charge a premium, but they are also not equivalent to the $10 meter. Fluke uses higher-quality (and thus more expensive) components, and it definitely costs them more than $15 to manufacture. This affects the actual electronics to the case to the probes to the buttons.
If you use your meter to measure your batteries and the occasional resistor, you probably don't care. But if you use the meter often, you may start to notice the difference, and that's why people are willing to pay that higher price--it really is worth it to some.
http://tsdr.uspto.gov/documentviewer?caseId=sn75934005&docId...
I think that is the ideal tradeoff---the logo lets a consumer know what they are buying, but you should still be allowed to buy cheap products that look stylish...
The court says yes: http://www.androidpolice.com/2014/02/08/t-mobile-wins-lawsui...
Why would this be different? Using a known, good name brand like Fluke or T-Mobile... and diluting it's name by making confusing, derivative and lesser products.
Using the color yellow shouldn't be off limits... but using yellow (or magenta) to confuse consumers should be.
Industrial design usually won't qualify because it's functional. The color comes from the use of aluminum, aluminum is used for its structural properties, particular colors have more aesthetic value in the market, etc. Trade dress has to be more specific, not functional, and arbitrary.
A classic example is pink for Owens-Corning insulation. It's a totally arbitrary color choice for a product where aesthetics doesn't factor into buyers' choices, and had become strongly associated in the public with Owens-Corning's brand. If there was a functional reason for the pink color, or it was a situation where people would prefer a certain color for aesthetic reasons, the design choice wouldn't have been eligible for protection.
[1] http://www.cafepress.com/mf/34611212/enjoy-capitalism_tshirt...
In the case of the Macbooks vs Dell XPS ultrabooks you could argue that what makes people recognize a Macbook is as much the glowing white apple logo as the aluminum case so people are not being fooled when they see a Dell XPS into thinking it's a Macbook.
Similarly, people don't immediately assume that a sport car painted red is a Ferrari. But if they were to see a car with a Ferrari logo (regardless of its color) they would most certainly assume that it's a Ferrari.
In short, it's my understanding that trademarks are by definition somewhat subjective. However I believe that the intention is a good one, as it protects as much customers than brands.
Fluke is not the first one to use the color scheme they were just the first to apply for a patent on it.
Even if they were they didn't enforce it until now so it became the general color scheme of all multimeters not just Fluke multimeters.
https://www.google.com/search?q=multimeter&safe=on&client=fi...
Most of the ones that look like a Fluke are indeed a Fluke.
[1] http://www.amazon.co.uk/s/ref=nb_sb_noss_2?url=search-alias%...
In any case, I don't think I'm qualified to have an opinion in the case being discussed here. Both because my understanding of trademark law is just a very general sense of what it is supposed to stand for and because I have absolutely no notion of what are the multimeter brands out there and what their designs look like.
For what it's worth, all the multimeters I recall using at school were either all yellow or all black and I have the feeling they were always the same brand although I don't remember what that was (I studied in Europe)
In the case of a durable tool, like a multimeter, the industrial design serves the same purpose packaging does for normal consumer goods.
Let me turn the question around: "Should you really be allowed to trademark your packaging?"
I think in the case of Apple, they iterate so often on basic laptop design that having trademarked trade dress around a laptop would be counter-productive. They always want their devices to be thinner and lighter, and that requires fundamental changes to the design (wedge shapes, unibody, etc)
With the Dell laptop, what really makes it look like Apple? It's silver and thin. There are literally dozens of vendors shipping thin, silver devices.
Yeah… nah
Most people glancing at it are going to see a multimeter, not a fluke. They would look for some kind of Fluke branding, and a yellow bezel with grey front plate is not that, for signs of flukeness.
Especially in the red sparkfun card it is pretty clear that these are not fluke. I find it hard to understand that anyone would think this is a fluke device with even cursory inspection.
Edit: your google images link is interesting. It shows some fluke devices being in red, not yellow, cases / bezels.
Removing the word fluke from the search terms returns many devices that are either all yellow, or all grey, with a few other colours, and some that are grey in a yellow case. Many of the grey and yellow devices are not fluke devices.
It'd be interesting to see how many devices were using dark grey in yellow before 2000.
The yellow/grey contrast is a recent development, and it would surprise me very much if it weren't a deliberate attempt to knock off Fluke.
https://www.google.com/search?q=multimeter&safe=active&sourc...
It's not protecting the use of yellow, which is why the pure yellow devices exist.
It would be nice if they got a warning first though.
https://cdn.sparkfun.com/assets/home_page_posts/1/4/2/8/DMM_...
Red especially is used by many companies for DMMs, it's a safe color. There's also different hues you can use, maybe burgundy, or even stripes. My point is, this color yellow is similar to Fluke yellow, and that's without proper lighting or color calibration.
http://www.circuitspecialists.com/digital-multimeters
For example, this is a very popular budget meter, Circuit Specialists have been selling it for many years (I have one that's 7 years old):
http://www.circuitspecialists.com/csi2205d.html
Also - how long have Fluke been selling their yellow devices?
I learned about Fluke making good multimeters probably about 17 years ago, in a student job. I'm pretty sure it was already yellow (and thus before they applied for the trademark).
They are expensive, but if you use a meter everyday you probably have one. Its a good tool. Mine has taken a lot of abuse.
Aside: I can think of plenty of fun ways to quickly destroy 2000 cheap multimeters that would not cost $150/hour.
Also if they just reverse the color scheme then the trademark will not be violated and people will still associate yellow with high-quality devices.
Don't watch if you are emotionally attached to pc hardware.
For future reference, actually it does:
http://tsdr.uspto.gov/#caseNumber=75934005&caseType=SERIAL_N...
Let us take it as a given that within this particular tradespace, “contrasting yellow border” and “Fluke” just happen to be to references for the same thing, in this case a brand. But that also means that the brand can be damaged through either reference, so it’s incumbent upon the company that depends on that brand to guard those references to the brand.
Which is the category for Electronic Multimeter Without a Recording Device, NOT for use in an aircraft.
I could see a system that cross-references that code with known trademarks -- kind of a like a "Be on Lookout Of" but for design trademarks.
More generally, I wonder how is it possible that inspectors are expected to deal with all the grey market goods that could be entering the border? Perhaps, a better example are children's toy jewellery which on numerous times have been found to have toxic levels of chemicals (eg. lead to levels high enough to send children into hospitals). Do the inspectors actually test for lead, or is their some sort of certification paper that is required?
What about those cheap electrical parts that you can buy (e.g. computer/iphone power adapters). I read a tear down report stating that these were unsafe because wiring not done to safety codes, so who is responsible for inspections before they enter the border?
The general case is complex, and I've never been able to read how the process is handled, so I assume given the quantity of products being imported they are often priced so cheap because they never go through the QA and safety standards that would be required if they were manufactured here. --Another example of pricing that doesn't factor in the total cost of the good, that is Chinese toys are cheaper than local because they aren't tested to our codes thereby avoiding whole cost structures that local companies incur resulting in cheaper products yet overall they are more expensive to society because 1% of buyers end up in the hospital and incurring those costs.
There is a really interesting NPR "Planet Money" podcast where they talk to customs folks about the import process. (They were tracing the supply chain for a t-shirt) Customs agents have lots of obscure knowledge about these things.
This is totally overbroad. Unfortunately once something is approved by the PTO it's almost impossible to overturn.
It is also unreasonable that there is no option once seized to have it ship to a country other than the origin. After all it may very well be legal in Canada or Poland or somewhere.
[EDIT] They have at least two generic trademarks, one with matching class.
Class 9 (including electric, measuring): http://trademarks.justia.com/852/58/n-a-85258337.html
Class 16: http://trademarks.justia.com/850/51/n-a-85051489.html
For comparison the less generic Class 9 entry of Fluke: http://trademarks.justia.com/860/76/n-86076075.html & http://trademarks.justia.com/860/76/n-86076086.html
http://trademarkbureau.com/trademark_classes.php
It doesn't seem to stop National Geographic from licensing their logo to optical instrument manufacturer Bresser.
Yellow border on electronic hardware: http://www.bresser.de/publications/national_geo_kat_de_en/HT...
[EDIT] There are some
Class 9 (including electric): http://trademarks.justia.com/852/58/n-a-85258337.html
Class 16: http://trademarks.justia.com/850/51/n-a-85051489.html
I agree that this sucks for Sparkfun, but at some point someone had to think these look a lot like Flukes' multimeters. If you ever find yourself thinking 'this product I'm about to import looks a LOT like $major_market_player's product' then take a second to look up their trademarks. You don't have to stay up to date on every trademark but at least do a cursory search before a big commitment..
Sorry Earth indeed. Shit like this probably happens every minute of the day, and it probably cancels out everyone's cumulative efforts towards a more sustainable society. Destroying working products is a gratuitous waste that should be illegal, and that illegality should supersede any trademark law violation.
Why not order SparkFun to spray paint them black within a number of days instead?
It's seriously difficult to get paint to stick to plastic. When the paint starts peeling, that sounds like a heck of a liability issue.
Call it "The Sparkfun Multimeter Casing Challenge". Mention their existing industrial design issues. Call on their users (more than a few of which have a 3D printing background) to design a multimeter housing that's unique, and reflects their brand. If they could wangle it, they could even yank out their DMM circuitry from the import-restricted DMMs and send the guts to the contest entrants to make working prototypes.
That would be a great way to get design done for free by people excited about the Sparkfun brand.
- Is the yellow used by the competitor distinguishable by the human eye from the yellow used by Fluke?
- Is the yellow used by Fluke distinct from colors commonly used on similar items to improve visibility, or a color not commonly available in the source materials for similar products?
If Fluke buys off-the-shelf plastic pellets, with the same colors used by everyone who makes colored plastic things, they can hardly complain when natural, functional choices in product design replicate their claimed color mark.
If they claimed a very specific, non-standard yellow, like rgb(197,247,45), and a specific contrast color, like rgb(0,53,117), I'd defend it in a heartbeat. But let's be honest. If you sell plastic pellets in bulk, and you could only stock 6 colors, they would be transparent, white, black, cyan, magenta, and yellow. At minimum, the customer could melt and mix a specific color within a reasonable gamut. Claiming 2 of those primary pigment colors as trademarked so no one else could use them without significant additional expense is a bit ridiculous.
But the wheels of justice have many irregularly shaped cams and cogs, so my common sense approach almost certainly would not have merit in any actual courtroom.