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SparkFun is forced to incinerate 2,000 multimeters because they are yellow.
Today (March 20, 2014), Fluke reached out to us. Here is what they had to say. SparkFun has officially accepted their offer and will be donating the Fluke multimeters to several educational institutions and schools.
Part of SparkFun's business model is to find really cool items that every hacker and DIY electronics person needs. A digital multimeter is one of those "must-haves." We started sourcing a really great high-quality $15 multimeter back in 2008. This price-point enables countless beginners to get their feet wet in electronics.
Fast forward six years and many thousands of multimeters sold. On March 7th, we were notified by the Department of Homeland Security/US Customs and Border Protection that our latest shipment of 2,000 multimeters was being inspected:
This is to advise you that the following articles have been excluded from entry into the United States pursuant to US International Trade Commission Exclusion Order 337-TA-588.
Uh-oh. Ok. 337-TA-588 is formally titled: "Certain Digital Multimeters, and Products with Multimeter Functionality." You can grab the large 20.7MB PDF here. This is 162 pages of companies (Velleman, Harbor Freight, Elenco, Electronic Express, and Jameco to name a few) that have been brought under scrutiny by the US International Trade Commission because these companies were selling:
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.
What do our multimeters have to do with this? Turns out Fluke filed for a trademark in 2000 and received it in late 2003. Fluke's trademark number is 2796480 (thanks larrys on ycombinator). ~~The USPTO website doesn't like hard links so here's another site that has their trademark info.~~ The multimeters we sell have a yellow-ish border (it's more like macaroni and cheese really) so we may be violating Fluke's trademark. From Fluke's Trademark filing:
Indication of Colors claimed: Color is not claimed as a feature of the mark.
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.
Wow. I feel for the US Customs and Border Protection agents who have to interpret this. I don't fully understand it but it sounds like any measurement device with a yellow border is now under the domain of Fluke's 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.
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.
A message to Fluke: You're cool! We like Fluke. We didn't know about your trademark on yellow framed multimeters and we agree to change our colors. Perhaps we can be granted a 60-day license? There's probably not enough time (the DMMs will be destroyed in a few days) but perhaps there's a chance. We'd be happy to donate them to the cause of your choice.
So where does this leave us? The stuff you don't know you don't know hurts the most. We were out of stock before this seizure happened so, sorry folks, we'll be out of stock for a bit longer. We'll change the DMMs from yellow to red. We'll eat the $30,000 financial loss and 2,000 multimeters will be destroyed somewhere in Los Angeles. We learned a little more about trademarks. If you're a business, watch out for yellow multimeters. If you're a user, enjoy the glory of the Fluke yellow.