Everyone I know says the SF MMs look like Fluke brand, and are obvious knock offs.
I do not see it. Color should matter less than the name on it. The name on it doesn't say Fluke, the shape doesn't look like a Fluke. If you purchase this because it looks like a Fluke it detracts from the value making it look even more generic.
I have Craftsmen stuff with the same exact color scheme as Porter Cable, on top of that I used to have Skill brand and it was the same red and black, same shape, served the same purpose, etc etc...
I'm not a staunch defender of patent and trademark law by a longshot. But given the current provisions, I think Customs' actions were justified. It seems ludicrous to me that brand identity must rely solely upon a lexical sequence of letters, when color combinations, shapes, and -- yes -- even scents are equally evocative of a product's market identity. My only criticism of Customs might be that I think Sparkfun should have been given the opportunity, in a bonded facility, of remediating the issue by either repainting the enclosure shells or bringing in correctly colored ones from China.
Again, for those posters who bandy the word "copyright", copyright has NOTHING to do with this case.
-Phil
I always thought the American sense of fair play was all about having the ability to appeal any decision. But when government grows so big and complex while being restricted in resources that recourse is not longer really available to smaller businesses and people that have little wealth -- some might begin to consider the government corrupt beyond repair.
Over the past 40-50 years, communications with big institutions have gone from being bilateral, to unilateral with a lot of power deligated to administrative institutions .. such as the Department of Homeland Security. I suspect it all started when we began to lay off telephone operators and have a robotic voice provide a menu of choices.
There was a time that if your automobile was a lemon, you could send a telegram to the president of the corporation that made it and actually get a response.. but no longer.
++++
A brand doesn't have to be based solely on a lexical string, a trademark can be a mark of elaborate creativity. There are plenty of other ways to prove genuine or copy than to claim 'all yellow multimeters within a certain range of yellow must be genuine Fluke'
By the way, the yellow in heavy equipments started out a 'International Yellow' and was suppose to be the safest color for seeing a vehicle in all weather conditions.
So it seems that 'international yellow' might be the opposite of a trademark, a color that belongs to the public domains. But who decides and how?
Wow.. it seems Fluke has gone into damage control mode and promised to ship merchandise to Sparkfun free of charge in excess of the value of the imported multimeters for Sparkfun to sell or give away.
I presume the value is set at retail price. Personally, I can't afford a Fluke regardless of where it is sold. So Sparkfun might recover their funds over time, maybe not.
I am ambivalent on Fluke doing this 'one-time' good will solution. It is better than nothing, but doesn't move to resolve the bigger issues. It just kicks the can down the road.
+++++++++
I still think a trademark should just be a mark -- an image placed on the product. But Coka-Cola started much of this by claiming the shape of the bottle and red and white as trademark features.
The doctrine of 'instant brand recognition' is all about selling, not about protection of the brand. It creates a slippery slope that pushes out the new guy or the small guy.
Same colors but different color scheme. Apparently that's enough of a distinction.
And here's the one from Sparkfun:
There's a definite attempt to emulate the Fluke scheme methinks.
-Phil
Sorry Phil,
I don't think they are alike. The shape is different, the switch is different, the inputs are different. There is nothing apart from color but I have yellow mutimeters bought >30 years ago that are that yellow safety color and they are not Fluke.
This is completely different to Samsung who deliberately copied Apples iPhone, almost to its entirety - shape, button, speaker, gui etc etc and even their internal email reveals they deliberately copied it.
Fluke's response has to represent the best of American enterprise! As much as I despise the excesses of patent, trademark, and copyright law, I think Customs was correct in their enforcement of that law, however flawed, and that Fluke's rising above the fray to help an underdog is meritorious. Under the circumstances, a better outcome could not be imagined.
I don't think they are alike. The shape is different, the switch is different, the inputs are different.
The flaw in your argument is that you're comparing only one Fluke meter to the Sparkfun meter. The switch and inputs are irrelevant to the trademark. What matters is the color scheme, and that's the trademark that Fluke received registration for. Extending your argument to, say, Coca Cola, would permit an off-brand bottle shaped like a Coke bottle, so long as it had a different colored cap. It doesn't work that way.
I tend to agree with Phil that it is pretty close to a Fluke and I am certainly aware of how the foreign manufacturers with push as close as they can to copying a branded item as long as they can get away with it.
But the problem really remains. How does a small importer protect themselves from having a purchase of imported goods confiscated and destroyed in such a situation? Often, they have no idea of how to avoid problems, so it seems Homeland Security is being a bit heavy handed.
I still feel that shape and color are stretching trademark identity too far. Fluke could put a larger logo on their product, so could everyone else.
In the old days a "trademark" was literally that. A mark under which you traded. It was the name/logo on the sign above your store front. It was the manufactures label discretely placed on the inside pocket of your coat or jacket or under the collar of your shirt. It was the label on packaging. It was on your letter heads. etc.
Trademark law was all about stopping others putting your trademark on their products. Stopping them passing off shoddy goods by confusing people into thinking it was yours. Stopping them exploiting your good reputation.
Today the idea trademark has been stretched so far that the product is the trademark. Extreme examples of this are Coca Cola, as mentioned, where a cheap, shoddy and basically worthless good is totally wrapped in a brand the bottle itself is the trade mark. The brand has value, the content does not.
Other examples are today's trend to have logos prominently plastered all over shirts and shoes and such. Those goods would have little value without the brainwashing of the branding and advertising.
FLUKE now want to be part of that madness. They want the product to be the trademark. Did they also go as far as Coca Cola and put a worthless good inside that is no better than the cheap stuff?
Phil,
Fluke's rising above the fray to help an underdog is meritorious
Did FLUKE do something good in this? Like telling customs not to worry about it? If so I messed that part.
Fluke is gifting Sparkfun merchandise equal to or more than the value to the confiscated shipment. (Of course, the Flukes are also made in China.. so I am having some difficulty sorting out what I should feel about Fluke.)
Meanwhile, Sparkfun seems to have been able to divert at least portions of the shipment to other vendors in other countries.
So Sparkfun will eventually not suffer a loss, but they might have a lot of Flukes that are higher priced to try to sell. These could become a warehousing problem or not. Who knows?
==========
And yes, Coca Cola did all these nasty things to trademark laws back in the Roaring 20s, when the US Government was corruptly turning a blind eye to Prohibition and very much into making money.
All this talk of multimeters is reminding me that I have a 32 year old Radio Shack DMM that's crude, but still working. I've been thinking of buying a new one for ages, but the old one hasn't died yet.
All this talk of multimeters is reminding me that I have a 32 year old Radio Shack DMM that's crude, but still working. I've been thinking of buying a new one for ages, but the old one hasn't died yet.
I have one of those - not sure how old, could be in its mid-30's. It has one of those funny front panels with a needle that bounces around as it settles on a value. I should put batteries in it and see if it still works. Oh, and it's a gray beige color, so I guess I can keep it??
I think the main point here is that a company should not allowed to copyright a color (or a combination of colors).
Just because a meter is yellow and black does NOT mean they are trying to "fool" people into thinking it is a fluke.
Now if made it yellow and black AND called it a floke meter...Them I am with you that it is a trying to "fool" people. But just the colors alone is going too far in my book.
If you are stupid enough to think that any meter that is yellow and black is a fluke, then that is your fault.
Bean
it is a trademark issue NOT a copyright issue.
We have patents, copyrights, and trademarks.
Trademarks are unlike patents and copyrights in that they don't have a defined life. And they have very different tests of ownership. Also, you can have either a TM or a Circle R (the registered TM).
There are lots of infrigements. Just consider IBM which is also known as 'Big Blue' and Microsoft's 'blue screen' upon failure. It is likely MS selected blue to annoy IBM.
Also consider that the color specification began in the 1920s or earlier. Color comparison was NOT anywhere near as precise as it now is.
++++++++++
It seems that Sparkfun may actually come out ahead on this dust up. Of course, Sparkfun might sell their gifted Flukes at $15USD just to play into Fluke's generosity. But they are getting a lot of publicity regardless and at this point they may have no loss as the shipment appears to have been diverted to other overseas buyers.
So this seems to have used the internet as the 'court of public opinion'. How interesting.
I have one of those - not sure how old, could be in its mid-30's. It has one of those funny front panels with a needle that bounces around as it settles on a value. I should put batteries in it and see if it still works. Oh, and it's a gray beige color, so I guess I can keep it??
Mine is gray beige as well and won't be mistaken for a Fluke. It's also digital so your meter is probably older than mine.
And to clarify what I said before, I don't necessarily care that something is made in China.
I care that it isn't a knockoff made of substandard or toxic materials, meant to cut into an existing established business.
I have no problem with someone coming up with a cheaper and/or better piece of equipment. I have a problem with something inferior mimicking an established product line.
Because what's the alternative? Oh man this other company is selling similar but internally different (and inferior) items into our established market, guess we just have to lay everyone off and go pout in the corner. Free market is a free market, after all.
What Fluke did was dishonest and the act of a bully.
Sparkfun deals primarily with lots of low end hobbyists who can't afford the overpriced Chinese made stuff that Fluke turns out period. In short your average electronic tinkerer isn't going to drop $200-300 for a Fluke DMM.
So Sparkfun isn't poaching Fluke's market period.
Besides I've seen plenty of el-cheapo yellow DMM's at Harbor Freight over the years. Yet I never saw Fluke send it's lawyers after them. Oh yeah, H-F has it's own lawyers and would make Fluke regret it.
Lastly given that Fluke has now outsourced it's production and quality control to Chinese sweatshops and refused to lower their prices to reflect this move, they can go pound sand.
Really, it seems like a really smart move to me. They don't want to be perceived as the bad guys. It's a good advertising opportunity.
I agree, bad stuff made with toxic materials should be stopped. That is perhaps what the department of home land security should be checking.
I have a problem with something inferior mimicking an established product line.
To be fair nobody has done that here. They only made a yellow box as has been going on for decades already.
..guess we just have to lay everyone off and go pout in the corner.
That already happened already. FLUKEs are made in China.
@Jazzed,
Move to the USA then contact your Senators and Congressional Representative.
That is a sick joke. I'm sure you know that there is as much possibility of me being accepted into the USA as peasant from Mongolia.
Besides the same **** is going on over here in Europe. Fuelled by corporate interests from God knows where. Thanks to Disney and the tyranny of copyright law I now have to pay extra as a passenger in a taxi to hear whatever nonsense may be playing on the radio! As an example.
@rod1963
What Fluke did was dishonest and the act of a bully.
Turns out that FLUKE did not do anything. After the event they did did their best to repair the damage done by US Customs.
That is a sick joke. I'm sure you know that there is as much possibility of me being accepted into the USA as peasant from Mongolia.
Ok, write to your local representatives.
Honestly, all you need is an H1B visa for work to get here and an illegal shell company to keep you here between jobs. That the way "desired educated immigrants" do it.
Years ago I bought a Cable tester on EBay for about 40.00. It is a cheapo made in China but works very well, tells me at what distance a break is in a cable, which pair it is if it is CAT 5 or 6 and has a device that beeps at the remote end when properly connected. A friend of mine was shocked when he pulled out his $600.00 Fluke meter that not did half of the things my cheapo one did at a fraction of the cost. That was when I decided Fluke, although good quality, is highly over rated.
A key phrase that pops up in trademark cases is "confusingly similar." That is if you take the product or packaging and put it in a situation where someone can't closely examine it -- meaning you're not going to analyze the exact lines, the wording of the logo, and so on -- is it likely to be confused with the infringed product? I'd say that if you saw the Sparkfun meter being used from 15 feet away you'd be quite likely to mistake it for one of the Flukes protected by this particular trade dress claim. And that's the measure. of infringement, not whether a smart person with common sense would mistake them in a careful side-by-side comparison.
Looking at at that article a bit more closely, I notice that most of the concepts of "trade dress" as opposed to trademark have evolved since WWII. This says to me that these provisions are probably inspired by the invention of modern advertising and propaganda by Edward Bernays in the 1920's. Working from the discoveries of his uncle Sigmund Freud, Bernays discovered that we make important decisions largely on the basis of unconscious cues, and decades of application have proven him out. Trade dress looks to me like protection for those things the unconscious mind notices and keys on, such as the shape of a bottle or a combination of color scheme and shape that we perceive as "coke" or "fluke" without even thinking. Before Bernays such things would not have been considered very important but now we know they are worth billions of dollars.
An interesting question is how the Sparkfun meters got flagged, since everything I've ever read suggests there are no such things as patent or trademark cops patrolling the wharves. What seems much more likely is that Fluke subscribes to a service, which probably has enough customers to pay the salaries of inspectors in every port. Fluke doesn't have enough money to watch all the ports but a company with 500 customers like Fluke does. So this guy sees the shipping container come in, and looks at the manifest. Multimeters? Got any customers for those? Oh, FLUKE. He flips to the page or pops it up on his pad and scrolls through the list of claims, most likely with pictures of examples. He gets to the yellow around gray claim with a picture of one of Fluke's meters, and looks at the Sparkfun product, and sees what looks like a direct knockoff. He probably doesn't even bother to call Fluke; his job is to stop the entry of anything that infringes, and he's just found something. Most likely it rarely even gets back to the infringed manufacturer that a shipment was stopped except in a monthly report.
I'd say that if you saw the Sparkfun meter being used from 15 feet away you'd be quite likely to mistake it for one of the Flukes
Yea, they are about as close as a yellow Volkswagen and a yellow Lamborghini. Regardless, don't know anyone that uses a multimeter from 15 feet. If a tech can't tell the difference between an inexpensive meter and a Fluke meter I wouldn't want them working on my equipment.
I'd also bet that any visually impaired or totally blind tech could tell the difference between a $15 multimeter and a Fluke multimeter, regardless of the color.
Well Bob I get your point but the thing is everybody thinks the principles behind propaganda sound crazy and that that stuff couldn't possibly work on them. But it must work on someone because players much larger than Fluke have been spending billions of dollars for more than half a century making sure that if you see a certain shape or color combination from a distance or in fleeting passing, you will have a certain visceral reaction. And it's worth a lot of money to them, and yes enforcement, to make sure it's the visceral reaction they paid for.
Also, as I theorized in my second post, the person making the determination was almost certainly not a tech person at all but a flunkie trained mostly in the art of deciding whether an UNTRAINED person might mistake the item in judgement for the potentially infringed item in the course of a brief passing glance. I'm certain you wouldn't want that person working on your equipment, but Coca-Cola is probably paying them a much larger share than Fluke to make sure nothing the same shape and color scheme as their bottles comes through the port.
Well Bob I get your point but the thing is everybody thinks the principles behind propaganda sound crazy and that that stuff couldn't possibly work on them. But it must work on someone because players much larger than Fluke have been spending billions of dollars for more than half a century making sure that if you see a certain shape or color combination from a distance or in fleeting passing, you will have a certain visceral reaction. And it's worth a lot of money to them, and yes enforcement, to make sure it's the visceral reaction they paid for.
Also, as I theorized in my second post, the person making the determination was almost certainly not a tech person at all but a flunkie trained mostly in the art of deciding whether an UNTRAINED person might mistake the item in judgement for the potentially infringed item in the course of a brief passing glance. I'm certain you wouldn't want that person working on your equipment, but Coca-Cola is probably paying them a much larger share than Fluke to make sure nothing the same shape and color scheme as their bottles comes through the port.
Glancing at a specific color or shape may give me a certain visceral reaction but I would want a closer look before I spent my money, and I am sure a close look would tell the difference between a Fluke and a cheap knockoff. If nothing else, the internet is teaching us the meaning of "caveat emptor".
Glancing at a specific color or shape may give me a certain visceral reaction but I would want a closer look before I spent my money.
Are you really so sure? Do you have any idea how many billions upon billions of dollars have been spent since the 1940's on the premise that a flash of color, a glib phrase, or a subliminal image hidden in a logo can make you more likely than otherwise to do something you'll think you're doing of your own free will? Nobody thinks that stuff works on them but if it didn't work on almost everyone that money would have been spent elsewhere.
Fluke isn't really the bad guy here, they're really small players in the branding game, just big enough to hire some consultants most likely. But the idea of trademarking a color like brown (associated with eliminative functions and a lot of very powerful and possibly useful interesting psychobabble associations) is what these people do. Of course UPS didn't "copyright" the color brown, their trademark on it applies only to shipping as a service, just as Fluke's applies only to multimeters. These things are not nearly so broad as they sound when they are described in text. They are trigger stimuli. Their creators want to make sure you experience the right reaction when you get triggered by them. And none of that is rational, it's all weirdly psychological but it works to the tune of billions of dollars and the people for whom it works want their workings protected from usurpers. And that's why trade dress was protected by the Landham act.
Comments
Enjoy!
Mike
I do not see it. Color should matter less than the name on it. The name on it doesn't say Fluke, the shape doesn't look like a Fluke. If you purchase this because it looks like a Fluke it detracts from the value making it look even more generic.
I have Craftsmen stuff with the same exact color scheme as Porter Cable, on top of that I used to have Skill brand and it was the same red and black, same shape, served the same purpose, etc etc...
Unbelievably awesome way to handle this publicity......
Flukes public response:
https://www.facebook.com/notes/fluke-corporation/sparkfun-we-hear-you/10151978262765592
Updated news article from Sparkfun:
https://www.sparkfun.com/news/1430
I always thought the American sense of fair play was all about having the ability to appeal any decision. But when government grows so big and complex while being restricted in resources that recourse is not longer really available to smaller businesses and people that have little wealth -- some might begin to consider the government corrupt beyond repair.
Over the past 40-50 years, communications with big institutions have gone from being bilateral, to unilateral with a lot of power deligated to administrative institutions .. such as the Department of Homeland Security. I suspect it all started when we began to lay off telephone operators and have a robotic voice provide a menu of choices.
There was a time that if your automobile was a lemon, you could send a telegram to the president of the corporation that made it and actually get a response.. but no longer.
++++
A brand doesn't have to be based solely on a lexical string, a trademark can be a mark of elaborate creativity. There are plenty of other ways to prove genuine or copy than to claim 'all yellow multimeters within a certain range of yellow must be genuine Fluke'
By the way, the yellow in heavy equipments started out a 'International Yellow' and was suppose to be the safest color for seeing a vehicle in all weather conditions.
So it seems that 'international yellow' might be the opposite of a trademark, a color that belongs to the public domains. But who decides and how?
I presume the value is set at retail price. Personally, I can't afford a Fluke regardless of where it is sold. So Sparkfun might recover their funds over time, maybe not.
I am ambivalent on Fluke doing this 'one-time' good will solution. It is better than nothing, but doesn't move to resolve the bigger issues. It just kicks the can down the road.
+++++++++
I still think a trademark should just be a mark -- an image placed on the product. But Coka-Cola started much of this by claiming the shape of the bottle and red and white as trademark features.
The doctrine of 'instant brand recognition' is all about selling, not about protection of the brand. It creates a slippery slope that pushes out the new guy or the small guy.
I don't think they are alike. The shape is different, the switch is different, the inputs are different. There is nothing apart from color but I have yellow mutimeters bought >30 years ago that are that yellow safety color and they are not Fluke.
This is completely different to Samsung who deliberately copied Apples iPhone, almost to its entirety - shape, button, speaker, gui etc etc and even their internal email reveals they deliberately copied it.
-Phil
The flaw in your argument is that you're comparing only one Fluke meter to the Sparkfun meter. The switch and inputs are irrelevant to the trademark. What matters is the color scheme, and that's the trademark that Fluke received registration for. Extending your argument to, say, Coca Cola, would permit an off-brand bottle shaped like a Coke bottle, so long as it had a different colored cap. It doesn't work that way.
-Phil
But the problem really remains. How does a small importer protect themselves from having a purchase of imported goods confiscated and destroyed in such a situation? Often, they have no idea of how to avoid problems, so it seems Homeland Security is being a bit heavy handed.
I still feel that shape and color are stretching trademark identity too far. Fluke could put a larger logo on their product, so could everyone else.
In the old days a "trademark" was literally that. A mark under which you traded. It was the name/logo on the sign above your store front. It was the manufactures label discretely placed on the inside pocket of your coat or jacket or under the collar of your shirt. It was the label on packaging. It was on your letter heads. etc.
Trademark law was all about stopping others putting your trademark on their products. Stopping them passing off shoddy goods by confusing people into thinking it was yours. Stopping them exploiting your good reputation.
Today the idea trademark has been stretched so far that the product is the trademark. Extreme examples of this are Coca Cola, as mentioned, where a cheap, shoddy and basically worthless good is totally wrapped in a brand the bottle itself is the trade mark. The brand has value, the content does not.
Other examples are today's trend to have logos prominently plastered all over shirts and shoes and such. Those goods would have little value without the brainwashing of the branding and advertising.
FLUKE now want to be part of that madness. They want the product to be the trademark. Did they also go as far as Coca Cola and put a worthless good inside that is no better than the cheap stuff?
Phil,
Did FLUKE do something good in this? Like telling customs not to worry about it? If so I messed that part.
Meanwhile, Sparkfun seems to have been able to divert at least portions of the shipment to other vendors in other countries.
So Sparkfun will eventually not suffer a loss, but they might have a lot of Flukes that are higher priced to try to sell. These could become a warehousing problem or not. Who knows?
==========
And yes, Coca Cola did all these nasty things to trademark laws back in the Roaring 20s, when the US Government was corruptly turning a blind eye to Prohibition and very much into making money.
I have one of those - not sure how old, could be in its mid-30's. It has one of those funny front panels with a needle that bounces around as it settles on a value. I should put batteries in it and see if it still works. Oh, and it's a gray beige color, so I guess I can keep it??
it is a trademark issue NOT a copyright issue.
We have patents, copyrights, and trademarks.
Trademarks are unlike patents and copyrights in that they don't have a defined life. And they have very different tests of ownership. Also, you can have either a TM or a Circle R (the registered TM).
There are lots of infrigements. Just consider IBM which is also known as 'Big Blue' and Microsoft's 'blue screen' upon failure. It is likely MS selected blue to annoy IBM.
Also consider that the color specification began in the 1920s or earlier. Color comparison was NOT anywhere near as precise as it now is.
++++++++++
It seems that Sparkfun may actually come out ahead on this dust up. Of course, Sparkfun might sell their gifted Flukes at $15USD just to play into Fluke's generosity. But they are getting a lot of publicity regardless and at this point they may have no loss as the shipment appears to have been diverted to other overseas buyers.
So this seems to have used the internet as the 'court of public opinion'. How interesting.
Mine is gray beige as well and won't be mistaken for a Fluke. It's also digital so your meter is probably older than mine.
And to clarify what I said before, I don't necessarily care that something is made in China.
I care that it isn't a knockoff made of substandard or toxic materials, meant to cut into an existing established business.
I have no problem with someone coming up with a cheaper and/or better piece of equipment. I have a problem with something inferior mimicking an established product line.
Because what's the alternative? Oh man this other company is selling similar but internally different (and inferior) items into our established market, guess we just have to lay everyone off and go pout in the corner. Free market is a free market, after all.
Sparkfun deals primarily with lots of low end hobbyists who can't afford the overpriced Chinese made stuff that Fluke turns out period. In short your average electronic tinkerer isn't going to drop $200-300 for a Fluke DMM.
So Sparkfun isn't poaching Fluke's market period.
Besides I've seen plenty of el-cheapo yellow DMM's at Harbor Freight over the years. Yet I never saw Fluke send it's lawyers after them. Oh yeah, H-F has it's own lawyers and would make Fluke regret it.
Lastly given that Fluke has now outsourced it's production and quality control to Chinese sweatshops and refused to lower their prices to reflect this move, they can go pound sand.
I agree, bad stuff made with toxic materials should be stopped. That is perhaps what the department of home land security should be checking. To be fair nobody has done that here. They only made a yellow box as has been going on for decades already. That already happened already. FLUKEs are made in China.
@Jazzed, That is a sick joke. I'm sure you know that there is as much possibility of me being accepted into the USA as peasant from Mongolia.
Besides the same **** is going on over here in Europe. Fuelled by corporate interests from God knows where. Thanks to Disney and the tyranny of copyright law I now have to pay extra as a passenger in a taxi to hear whatever nonsense may be playing on the radio! As an example.
@rod1963 Turns out that FLUKE did not do anything. After the event they did did their best to repair the damage done by US Customs.
Go FLUKE, they are OK.
Honestly, all you need is an H1B visa for work to get here and an illegal shell company to keep you here between jobs. That the way "desired educated immigrants" do it.
http://www.swlaw.com/assets/pdf/publications/2009/07/01/FLJ-29-1-SUM-2009_SANDBERG.pdf
A key phrase that pops up in trademark cases is "confusingly similar." That is if you take the product or packaging and put it in a situation where someone can't closely examine it -- meaning you're not going to analyze the exact lines, the wording of the logo, and so on -- is it likely to be confused with the infringed product? I'd say that if you saw the Sparkfun meter being used from 15 feet away you'd be quite likely to mistake it for one of the Flukes protected by this particular trade dress claim. And that's the measure. of infringement, not whether a smart person with common sense would mistake them in a careful side-by-side comparison.
An interesting question is how the Sparkfun meters got flagged, since everything I've ever read suggests there are no such things as patent or trademark cops patrolling the wharves. What seems much more likely is that Fluke subscribes to a service, which probably has enough customers to pay the salaries of inspectors in every port. Fluke doesn't have enough money to watch all the ports but a company with 500 customers like Fluke does. So this guy sees the shipping container come in, and looks at the manifest. Multimeters? Got any customers for those? Oh, FLUKE. He flips to the page or pops it up on his pad and scrolls through the list of claims, most likely with pictures of examples. He gets to the yellow around gray claim with a picture of one of Fluke's meters, and looks at the Sparkfun product, and sees what looks like a direct knockoff. He probably doesn't even bother to call Fluke; his job is to stop the entry of anything that infringes, and he's just found something. Most likely it rarely even gets back to the infringed manufacturer that a shipment was stopped except in a monthly report.
Yea, they are about as close as a yellow Volkswagen and a yellow Lamborghini. Regardless, don't know anyone that uses a multimeter from 15 feet. If a tech can't tell the difference between an inexpensive meter and a Fluke meter I wouldn't want them working on my equipment.
I'd also bet that any visually impaired or totally blind tech could tell the difference between a $15 multimeter and a Fluke multimeter, regardless of the color.
Also, as I theorized in my second post, the person making the determination was almost certainly not a tech person at all but a flunkie trained mostly in the art of deciding whether an UNTRAINED person might mistake the item in judgement for the potentially infringed item in the course of a brief passing glance. I'm certain you wouldn't want that person working on your equipment, but Coca-Cola is probably paying them a much larger share than Fluke to make sure nothing the same shape and color scheme as their bottles comes through the port.
Glancing at a specific color or shape may give me a certain visceral reaction but I would want a closer look before I spent my money, and I am sure a close look would tell the difference between a Fluke and a cheap knockoff. If nothing else, the internet is teaching us the meaning of "caveat emptor".
Are you really so sure? Do you have any idea how many billions upon billions of dollars have been spent since the 1940's on the premise that a flash of color, a glib phrase, or a subliminal image hidden in a logo can make you more likely than otherwise to do something you'll think you're doing of your own free will? Nobody thinks that stuff works on them but if it didn't work on almost everyone that money would have been spent elsewhere.
Fluke isn't really the bad guy here, they're really small players in the branding game, just big enough to hire some consultants most likely. But the idea of trademarking a color like brown (associated with eliminative functions and a lot of very powerful and possibly useful interesting psychobabble associations) is what these people do. Of course UPS didn't "copyright" the color brown, their trademark on it applies only to shipping as a service, just as Fluke's applies only to multimeters. These things are not nearly so broad as they sound when they are described in text. They are trigger stimuli. Their creators want to make sure you experience the right reaction when you get triggered by them. And none of that is rational, it's all weirdly psychological but it works to the tune of billions of dollars and the people for whom it works want their workings protected from usurpers. And that's why trade dress was protected by the Landham act.