Fluke took down my Ebay listing for Trademark infringement - Page 1
Forum section: electronics / general

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 03:15:21 am
content: Fluke have reported and had the ebay listing for my EEVblog meter removed because they didn't like that I dared mention Fluke in the listing.So you aren't allowed to say a meter is "better spec than" "cheaper than" "better value than" etc.And I can't edit the listing either, I have to create a whole new one.EDIT:Fluke seems to have used the "comparative disparagement" aspect of Australia trademark law:https://www.mmwtrademarks.com.au/blog/using-a-competitors-brand-is-it-legal/#blog-alert-modalhttps://www.eevblog.com/forum/chat/fluke-took-down-my-ebay-listing-for-trademark-infringement/msg5410703/#msg5410703

author: BrianHG
author_rank: Super Contributor
timestamp: March 24, 2024, 03:38:08 am
content: Are the rules in Australia different?I believe if you are no lying, you are allowed to make a comparison chart between your product and someone else's, so long as you give equal comparison with equal functions. Otherwise, some brochures/magazine adds I've seen in the past should have all been sued against.I guess the 90's was a different era.What happens when you read online a comparison between TI DSP's and Analog Devices DSPs? Or, have those all disappeared?Or, a comparison between TI's lowest power MCU VS Microchip's?All that aside, you have been zeroed out and fluke will be watching you. I don't think you will ever be able to compare your meter to Flukes on any Ebay ads ever again. Unless you come up with a clever way and convince Ebay you never used Fluke's logo.It's like those news or docu shows with live outdoor public filming, where some people on the street may be wearing a t-shirt with some popular registered logo or company name, and the editors on the video had to blur out the view of that t-shirt, or blur out the names on the soda cans someone may be carrying. Are they doing it because they will get in trouble, or is it just in case...

author: Halcyon
author_rank: Unknown
timestamp: March 24, 2024, 03:53:56 am
content: So your meter is better than a "Certain yellow, big brand meter, but for ridiculous policy reasons can't be named here. Starts with an "F" ends in "Luke"."

author: IanB
author_rank: Super Contributor
timestamp: March 24, 2024, 04:56:00 am
content: This is a kind of problem that happens in the modern world. Complaints can be made and action taken, without ever getting review by lawyers or independent arbitrators. Ebay can do what they choose, whether justified or not. Sucks, but not much you can do other than boycott Ebay.

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 05:26:55 am
content: Quote from: BrianHG on March 24, 2024, 03:38:08 amFYI, I never used the logo, it was simply the text Fluke used in a comparative sense.

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 05:27:35 am
content: Quote from: Halcyon on March 24, 2024, 03:53:56 amI'll go with that

author: MrMobodies
author_rank: Super Contributor
timestamp: March 24, 2024, 05:34:02 am
content: I wonder, is that anti-competitive behaviour from Fluke and Ebay?

author: JPortici
author_rank: Super Contributor
timestamp: March 24, 2024, 05:48:41 am
content: Quote from: MrMobodies on March 24, 2024, 05:34:02 amThere are services that will throw lawyers at anyone who says bad things about you or your brand, no matter if they are true or false

author: SiliconWizard
author_rank: Super Contributor
timestamp: March 24, 2024, 05:58:57 am
content: Comparative ads with explicit names of competitors are illegal in some countries (it is over here, although I don't know the intricate details.)I don't know which law eBay is following exactly, it's probably a huge legal mess due to its international nature, like most online businesses.

author: coppercone2
author_rank: Super Contributor
timestamp: March 24, 2024, 06:11:07 am
content: This IMO happens to companies that want to give up on R&D totally. I will be damned if I am forced to hire those god damned egg heads and lab coats again! we already did that 20 years ago!!!!this is a sign ofstagnationIt would be nice if we can fire everyone and keep selling our product forever! RIDE THIS BABY TILL I RETIRE !!!!#stagnation

author: eleguy
author_rank: Regular Contributor
timestamp: March 24, 2024, 06:15:45 am
content: It is here the same. In principle you should never say something is better than that. Instead you can always claim you have the BEST (cheapest, fastest, coolest,...) without having too much evidence having so.

author: BrianHG
author_rank: Super Contributor
timestamp: March 24, 2024, 06:21:50 am
content: Dave, is it possible for you to place on your Ebay add: Click this 'Link' here to see our meter compared to other industry brands.And at that link, you will host your comparison on your own web server with the 'Fluke' name...This way, you wont be violating Ebay's policy on their website.If Fluke wants to stop you now, they will need to reach you or your private web hosting server.

author: RoGeorge
author_rank: Super Contributor
timestamp: March 24, 2024, 07:06:17 am
content: I vaguely remember something similar about fair advertising here, in EU, meaning you are not allowed to "shame" other brands while advertising yours, no matter if your product is better or not.The idea is to not elevate your product on the expense of other brands, or by "borrowing" fame from another brand. Advertising by comparison (or by association), is not considered fair.

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 07:06:32 am
content: Quote from: SiliconWizard on March 24, 2024, 05:58:57 amIt's a trademark right system ebay put in place:https://www.ebay.com.au/help/policies/listing-policies/selling-policies/intellectual-property-vero-program?id=4349&mkevt=1&mkdid=4&mkcid=29&bu=44402467375&trkId=140087210000Fluke have registered their trademark with that VeRO system and then can just flag listing which I presume get them automatically taken down.It says if I want to cplain then I have the contact Fluke and get them to remove the flag on the listing, ebay can't do it and won't get involved.

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 07:07:07 am
content: Quote from: RoGeorge on March 24, 2024, 07:06:17 amThis is about trademark usage.

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 07:10:31 am
content: Quote from: MrMobodies on March 24, 2024, 05:34:02 amNothing to do with ebay, they simply provide a Trademark and rights registration system.Amazon have something similar. I have for exampel registered EEVblog as a trademark with amazon, so in theory if anyone tries to use my name (e.eg fake products etc) I can have listings taken down.

author: Halcyon
author_rank: Unknown
timestamp: March 24, 2024, 08:00:54 am
content: Quote from: EEVblog on March 24, 2024, 07:07:07 amI guess this is why on cosmetics, shampoo, cleaning products etc... they usually say something like "x2 more effective than the leading brand". Ambiguous as fuck and means nothing to anyone, but means they can't be done for infringement and it makes their product sound good?

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 08:06:45 am
content: I'm thinking "The included probes are fully compatible with the Fluke 179"

author: EPAIII
author_rank: Super Contributor
timestamp: March 24, 2024, 08:26:29 am
content: The thing is, they probably have a front line company of lawyers on call, 24/7. And you probably have just one who works by the hour. Talk about bringing a knife to a gun fight. You would go broke trying to fight them.Perhaps you could spell their name backwards, "ekulF" and tell your potential buyers that E-bay won't let you use it correctly so they need to read it backwards. Do the same thing with any other brands you want to mention. Be sure to properly capitalize the first letters of their names, which will be in the last position.Might be a good sales gimmick. Getting the potential customers involved in a game to figure out the names.PS: I don't know if it still works, but in the past I have been able to down-load and save E-bay ad text on my hard drive. That and some screen shots can be a big help if they shut you down again.

author: jpanhalt
author_rank: Super Contributor
timestamp: March 24, 2024, 09:15:46 am
content: 'fluke' is a trematode (worm) or accidental happening.Just change your listing to "better than a blood sucking fluke." Or, "Design matters. It's no fluke our instrument is better than the competition."You know Fluke Corporation will be checking carefully. Amazon and many others publish comparison charts, you know, "The 10 best multimeters..." Often, they will say trademarks used with permission, but Amazon doesn't bother. Ebay says "fits or substitute for <brand>" all the time for automotive parts and such.You could push the issue and show a comparison chart, ask Fluke for permission to use its brand name, after that is refused, just call it brand X, then add a footnote that Fluke Corporation (with its address) refused permission to use its trademark. There is a difference in permissible use of a corporate name and trademark for a product. Of course, the ultimate decision is up to eBay, and it can enforce any prohibition it wants (with limits) without regard to what the law actually allows.

author: tggzzz
author_rank: Super Contributor
timestamp: March 24, 2024, 09:22:50 am
content: Quote from: EEVblog on March 24, 2024, 03:15:21 amBut now you can have somefunChange the wording to "better than Flooke (see last two pictures)", where those pictures are the takedown notice.As a wise man almost said a long time ago, far far away: "Remember to use the Striesand Effect, Luke".

author: jonpaul
author_rank: Super Contributor
timestamp: March 24, 2024, 09:32:16 am
content: Dave, Bonjour, VERY interesting post! My specialty as inventor and EE, with many Fluke (TM) meters.1/ In USA//UK/EU law the Trademark and patent holders are responsible to persue any infringement /misue or risk loss of the trademark or patent.I m unaware if AU law may follow this common IP law practice. ANY misuse of a widely know mark held by a large corp eg "Dolby" can and will be persued by their legal dept.E.g. at Dolby Laboratories back to 1970s we had an entire legal and engineering team to enforce Dolby patents and trademarks, even individual's misuse.Failure to enforce the TM/Pat/IP can lead to their trademark being legally chalanged and becoming public property.2/ Trademark law in most countries allows use of the trademark but NOT "comparative disparagement"Your listing compares and disparages the Fluke meter.https://www.lexology.com/library/detail.aspx?g=9426f6d2-3aa9-42a6-96fd-c0b56daf0fd6That misuse can lead to a potential damage to the Fluke trademark reputation.Example: OK: "Drink Pepsi, it a great thing"NG "Pepsi is healthier than Coca-cola"Thus you can list any Fluke meter and mention Fluke but advertising or listing "better than Fluke" is not allowed and risky.The notice and letters are rouitne "boilerplate " and required to defend the Fluke mark.3. The EULA/T&C of Ebay, will have a term saying that Ebay has the right to reject any listing arbitrarilary. Thus, use of Ebay site is not a "right" but a "privelidge" .I believe that instead of your use of Fluke in the ebay post, you could instead just have a table of comparison of specs, features but mention just the model # but not the wod Fluke.EEVBLOG # 287 87 187Bon Chance!Have an Absolutely fantastic day!Jon (EE '68)(since 2003, I have survived and won 160 IP litigations )

author: watchmaker
author_rank: Unknown
timestamp: March 24, 2024, 10:58:09 am
content: Dave,Be careful. I know it is vexing and the temptation to bait the bear (or crocodile). I have had IP actions initiated by a rejected potential partner that resulted in me being awarded full service rights by a watch company after they realized what happened. (I was actually sent a C&D and yelled at the attorney on the phone for 20 minutes).BUT, you can easily go down a money pit.Suggestion. Call your contacts at Fluke and ask what Hell is going on. My IP lawyer suggested I go into the lion's den and I met with execs and the international counsel and wound up being rewarded. The associate initiating the action is very low level and the grown ups tend to be reasonable.But avoid pouring fuel on the fire!

author: nctnico
author_rank: Super Contributor
timestamp: March 24, 2024, 11:27:18 am
content: Quote from: SiliconWizard on March 24, 2024, 05:58:57 amAgreed. And shaming your competitors is rather lame anyway. As if buyers are stupid. In the end: if you have to tell people you are better, you most likely aren't.

author: tggzzz
author_rank: Super Contributor
timestamp: March 24, 2024, 12:07:33 pm
content: Quote from: nctnico on March 24, 2024, 11:27:18 amShaming competitors was one thing that was verboten at HP, at least when Bill and Dave were alive.

author: vk6zgo
author_rank: Super Contributor
timestamp: March 24, 2024, 12:35:41 pm
content: Some of the "IP" & trademark nonsense has gone "over the top".A couple of years back, Apple "got their knickers in a twist" because Woolworths in Australia has a logo which is in the form of an unpeeling green apple which was also a stylised "W"."Woolies" took them on, it went to an Australian court & Apple "went home with their tail between their legs".They should have known better than to try that on with a large Australian company in an Australian court, & on the flimsiest of premises.

author: mendip_discovery
author_rank: Super Contributor
timestamp: March 24, 2024, 12:51:07 pm
content: Sorry but I agree with Fluke and eBay. I remember having lots annoying adverts that would name drop the brand you are looking for but not actually be that brand. Remember the days of stuff with 'Cheap Multimeter, NOT Fluke 87' in the titles.Unless you have valid reason to mention them as it's an accessory or such.If you are saying you have better spec or features then be vague and say specification better than many other top brands. Rather than naming. It never paints you in a good light when you bad mouth the competition.

author: tooki
author_rank: Super Contributor
timestamp: March 24, 2024, 01:42:56 pm
content: Agreed. Without addressing the specifics of this instance, I’m in favor of policies that prevent keyword stuffing.

author: Mark
author_rank: Frequent Contributor
timestamp: March 24, 2024, 01:53:12 pm
content: Do you have any old Flukes you could sell on eBay? Set the price high so it doesn't sell and include the text"Please note, the specification on this meter is nowhere near as good as the EEVBlog 121GW Multimeter".

author: bdunham7
author_rank: Super Contributor
timestamp: March 24, 2024, 02:20:31 pm
content: Quote from: EEVblog on March 24, 2024, 03:15:21 amIf the policy is simply that you may not use a trademark unless you are selling a genuine product of that brand or an accessory item compatible with that brand, then you've violated it. While your comparisons to Fluke might well be acceptable in the US (or even Australia--IDK), eBay's policies have to cover everywhere your listing is visible. Also, unless you appeal, they simply accept Fluke's representative's word that this is a violation and tell you to contact Fluke directly to resolve the issue. Sometimes that might be the appropriate thing to do, but you also have the option of appealing with eBay. Keep in mind that nobody has put even a minute's thought into this so far--they've just reacted in a reflexive manner to the trademark appearing in your listing. Also keep in mind that 99% of similar complaints are probably legit issues with keyword spamming or similar things.

author: switchabl
author_rank: Frequent Contributor
timestamp: March 24, 2024, 02:36:42 pm
content: Quote from: RoGeorge on March 24, 2024, 07:06:17 amYou are not allowed to "discredit or denigrate" ("Fluke 87 sucks by comparison") but comparison can be okay so long as it is objective, relevant and verifiable. "Better accuracy on voltage and current ranges, at lower cost" is likely fine (if true), "better value" would probably be considered too subjective. Putting "similar to X" in the title for the brand recognition and the keywords is almost always illegal (with some narrow exceptions on things like spare parts). See Directive 2006/114/EC, art. 4 for the list of criteria (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114)Quote from: EEVblog on March 24, 2024, 07:07:07 amAt least around here, unfair comparative advertisingisa trademark violation, so the two questions are very much linked. Details in other jurisdictions may vary (but eBay as an international business might just apply a kind of lowest common denominator).

author: ebastler
author_rank: Super Contributor
timestamp: March 24, 2024, 03:38:09 pm
content: Quote from: EEVblog on March 24, 2024, 03:15:21 amYou didn't say -- did you use "Fluke" in the title of your listing, or somewhere in the description?I agree with others that using it in the title amounts to keyword stuffing and should be discouraged. Using it in the description, on the other hand, e.g. for a factual performance comparison, would be fine with me -- but seems to be prohibited as well by the ebay policy you quoted?

author: MrMobodies
author_rank: Super Contributor
timestamp: March 24, 2024, 03:48:36 pm
content: Quote from: EEVblog on March 24, 2024, 08:06:45 amWill manufacturers complain about this one too, "Fully compatible with all major multi brand multimeters."Assuming it is referring to their trademarks.

author: switchabl
author_rank: Frequent Contributor
timestamp: March 24, 2024, 04:53:52 pm
content: Quote from: ebastler on March 24, 2024, 03:38:09 pmYeah, to be fair, even if the trademark claim may be debatable, eBay policy on the matter seems very clear:"Listings that make comparisons with other products are not allowed"(https://www.ebay.com/help/policies/listing-policies/search-manipulation-policy?id=4243)So, suing Fluke over this is probably not worth it.

author: edpalmer42
author_rank: Super Contributor
timestamp: March 24, 2024, 08:20:00 pm
content: One point that hasn't been mentioned is the idea of 'defending your trademark'. There are lots of trademarks that have become generic words to describe a class of items like Kleenex, Band-aid, Aspirin, etc. If the companies don't defend their trademarks, they can lose them. I've always thought it was interesting that in North America you 'vacuum' your carpet whereas in Britain, you 'hoover' it. I've got a Hoover (brand name) carpet cleaner. Has Hoover (the company) lost the trademark in Britain?So, the companies go crazy with cease & desist letters, DMCA takedowns, etc. so they can show a future court that they have defended their trademark or intellectual property. It doesn't matter if the case is good or bad or whether they win or lose, they just have to show that they've defended their property.I can't find the link, but I seem to remember that McDonald's, the fast food restaurant, sent a C&D letter to the head of the McDonald clan in Scotland!Edhttps://www.nytimes.com/2019/06/24/smarter-living/how-a-brand-name-becomes-generic.htmlhttps://www.consumerreports.org/consumerist/15-product-trademarks-that-have-become-victims-of-genericization/https://tvtropes.org/pmwiki/pmwiki.php/ScrewedByTheLawyers/RealLifeQuote

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 08:22:42 pm
content: Quote from: jpanhalt on March 24, 2024, 09:15:46 amIt's not up to Ebay. They deliberately put this system in place and it's self reporting system, so the legal onus is pushed back onto the trademark owner. It's very clear in the email that ebay play no part in this apart from providing the system of reporting.

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 08:25:55 pm
content: Quote from: edpalmer42 on March 24, 2024, 08:20:00 pmFluke famously did that with Sparkfun and their "trade dress" trademark. a.k.a the yellow holster colour for multimeters.https://www.sparkfun.com/news/1428I don't think this falls under the same category of "defend it or lose it".

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 08:36:18 pm
content: Quote from: jonpaul on March 24, 2024, 09:32:16 amThanks, that seems to be the keyword, and yep, it seems to be a thing in Australia:https://www.mmwtrademarks.com.au/blog/using-a-competitors-brand-is-it-legal/#blog-alert-modal

author: EEVblog
author_rank: Unknown
timestamp: March 24, 2024, 09:10:51 pm
content: Quote from: watchmaker on March 24, 2024, 10:58:09 amI'm not stupid enough to spend a cent in time or legal costs to fight this, apart from making people aware of what's happened.It is in fact rather funny, so I'll just have fun with it.QuoteNope, not worth the time. They have a Trademark team who's job it is protect their trademarks, and they will use every avenue of the law to do it, right down to the case of the Sparkfun meters of having them seized at the US border.

author: AndyBeez
author_rank: Frequent Contributor
timestamp: March 24, 2024, 09:21:45 pm
content: Take this as a possible compliment. Fluke are afraid, very afraid. That's if their executives even know what Vero is, or multimeters areBut they will certainly take note of a YouTuber with close to a million subscribers

author: Stray Electron
author_rank: Super Contributor
timestamp: March 25, 2024, 12:50:32 am
content: Quote from: JPortici on March 24, 2024, 05:48:41 amHolland and Knight in Orlando is one such. They're on retainer for anyone that sues Ebay in Florida and they handle very large numbers of SLAPP lawsuitshttps://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participation. H&K is The Largest law firm in Florida. No, that loud mouth Morgan & Morgan is not the largest firm despite what their ads say; they're only the largest firm of "Personal Injury" attorneys; aka Ambulance chasers.

author: SiliconWizard
author_rank: Super Contributor
timestamp: March 25, 2024, 04:58:28 am
content: Quote from: nctnico on March 24, 2024, 11:27:18 amYeah, although the fact that point should be legally enforced is debatable.Anyway, that wasn't that here but just trademark issues - apparently just mentioning a trademark that you don't own is a problem. It may have gone a bit too far as some have said, although I don't have a strong opinion on this one either way.To play devil's advocate, if you use some other company's trademark, even if you don't "shame" said company at all, to help you sell your products in any way, I'd say it can be borderline, as you're effectively leveraging their image to help yours.So, yeah. Claiming it's trademark "infringement" is a bit excessive though.

author: coppercone2
author_rank: Super Contributor
timestamp: March 25, 2024, 05:33:06 am
content: Quote from: mendip_discovery on March 24, 2024, 12:51:07 pmthis part I agree with it should not be in the search termIt better be fluke compatible or a fluke if I search for fluke. 'Fluke like' is just troll advertising. If there was a possible alternatives mini-list or something that shows up that might be OK but not in the main results. Search engines need to work properly . At least for sales listings on a sales website it should be orderly.

author: David Aurora
author_rank: Frequent Contributor
timestamp: March 25, 2024, 10:19:34 am
content: Quote from: mendip_discovery on March 24, 2024, 12:51:07 pmThis, 100%.

author: SeanB
author_rank: Super Contributor
timestamp: March 25, 2024, 11:22:00 am
content: Yes just say it has better specs than older multimeters, and that as a bonus the leads are compliant with modern standards, and are interchangeable with all meters that comply to IEC standards for safety. That hits the right words, and does not mention the nematode worm at all.You can off course go and take a picture of one in a local stream, so you own the copyright on it, and put the picture in the listing as well. Has to be your own picture though, no copyright of others to interfere, and put the info in the Exif data of the presumed species of nematode worm.

author: thm_w
author_rank: Super Contributor
timestamp: March 25, 2024, 09:47:43 pm
content: Quote from: ebastler on March 24, 2024, 03:38:09 pmIt has to be in the description:https://www.ebay.com/itm/22324420124499% of the time I don't search by description so I don't really care what goes in there, as long as its not just a random list of generated keywords and is a valid description.

author: Red Squirrel
author_rank: Super Contributor
timestamp: March 27, 2024, 02:30:29 am
content: Wow that's ridiculous that it even counts as copyright infringement, it's simply mentioning the name. Should count as fair use. It seems IP laws now days have completely lost their purpose and they're just used to be predatory against others.

author: ebastler
author_rank: Super Contributor
timestamp: March 27, 2024, 07:10:15 am
content: Quote from: thm_w on March 25, 2024, 09:47:43 pmNot sure how you reach that conclusion? That must be a "sanitized" version of the item listing, edited after Fluke's complaint. It does not include Fluke in either the title or the description as far as I can see.By the way, Dave @EEVblog -- the link given in the item description,www.eevblog.com/121gw, does not seem to work?

author: EEVblog
author_rank: Unknown
timestamp: March 28, 2024, 05:33:16 am
content: Quote from: ebastler on March 27, 2024, 07:10:15 amThanks, fixed.

author: Brumby
author_rank: Unknown
timestamp: March 28, 2024, 08:21:11 am
content: Yes, it is certainly clear to me that the problem is one of saying aspecificcompetitor product is worse. Use the word "Fluke" and you're asking for attention.However, if you were to make anindirectreference - one that 99% of people in the industry would immediately pick up on, without mentioning the actual name at all - I would think you might be safe.There have been examples of corporate criticism from journalists attracting strong legal responses. I believe there was one example where IBM was the target with some critical, but restrained material. However, when IBM came down on them, the journalist switched to talking about amythical"Big Blue". Readers who would have an interest in the subject matter would instantly recognise this reference. Of even more interest is, that because the reference was no longer directly mentioning IBM, the journalist was able to really let loose and carved into Big Blue - with absolutely no legal worries. As a result, "Big Blue" suffered far more than they would have if they had left the journalist alone.

author: thm_w
author_rank: Super Contributor
timestamp: March 28, 2024, 08:55:28 pm
content: Quote from: ebastler on March 27, 2024, 07:10:15 amhttps://www.ebay.com/rvh/223244201244?rt=nchttps://www.ebay.com/fdbk/feedback_profile/eevblogstore?filter=feedback_page%3ARECEIVED_AS_SELLER&q=223244201244&sort=RELEVANCE