EEVblog #751 - How To Debunk A Product (The Batteriser)

[PeterL]

Obviously once they ship a single unit the game is up and within days everyone will know that the product doesn't perform even close to their claims. But I suspect their response will be total and utter silence.

I'm not so sure.

First of all I think they know pretty well where to ship the first batteriser's to.

Second is that a lot backers will dig through their pile of discarded batteries once they have their batteriser and find that a lot of those are suddenly usable again. And batteriser/batteroo will get some praises for it.

[rrinker]

 Actually, I think they are very sly for publicly stating that they will ship with the Batterizer name. This just BEGS Energizer to file for an injunction given that they've already won the trademark fight, which is now the NEXT excuse for why they WON'T ship on August 22. Sorry folks, we were all ready to ship you your Batterizers, but once again Big Battery has gotten a court order issued which prevents us from bringing you this revolutionary product.

 Also, August 22 - of what year? 

[madires]

Brilliant! So they just got three months more for the next update 

[firewalker]

Any photos of the production line?

Alexander.

[rich]

We never believed Batteroo had manufactured many units so when they say they're going to ship some of their existing Batteriser branded inventory, I assume they mean all of it or all they can within a certain timeframe (see below).

I've just read the filing from Energizer's lawsuit where they are seeking damages. It is interesting reading. They deny they ever sought to stop batteroo from shipping existing inventory

Highlights for me were:

• During the trademark negotiations, Energizer offered a 6 month phase out period so existing inventory wouldn't get scrapped.
• Energiser’s Opposition sought only denial of Batteroo’s trademark applications and could not have resulted in an injunction against sales of BATTERISER products.
• Batteroo agreed to send Energizer a sample unit after it shipped to consumers, expected March 2016. It has not yet shipped one to them.
  
• Energizer quotes bateroo Facebook post as deceptively claiming Energizer was blocking shipping.
• Repeated claims that Batteroo was not ready to ship throughout the entire trademark negotiation process.

Choice quotes:

28. After exchanging initial disclosures, Energizer and Batteroo engaged in negotiations to resolve the Opposition. During negotiations, Energizer, in a good faith effort to resolve the dispute, offered first a 90 day, then a 6 month “phase-out” period for use of the BATTERISER and BATTERISE marks, during which Batteroo could have sold through existing products. Eventually the negotiations reached an impasse, though Batteroo had agreed in principle to the 6 month phase-out provision, prior to the breakdown of negotiations on other terms.

46. On information and belief, Batteroo still did not have a viable production run of its
product prior to or during the Opposition proceeding. Batteroo recently sent an email message to customers, notifying them that Batteroo would be changing the name of the BATTERISER product as a result of the Opposition filed by Energizer. In the message, Batteroo attempted to use Energizer’s Opposition as an excuse for further delays, falsely implying that Energizer was responsible for Batteroo’s product delays. The message also falsely implies that Energizer prohibited distribution of already manufactured goods.

The whole Energizer document reads like this thread, but written in legal english. I wonder if this thread was a handy chronology for their lawyers. If so, we've all be colluding with big-battery since the beginning 

Edit to add: The pdf is at http://www.plainsite.org/dockets/307r4n75a/missouri-eastern-district-court/energizer-brands-llc-v-batteroo-inc/

[Kilrah]

Batteroo are very foolish for coming out publicly and saying they will deliberately ship products with the Batteriser name on them.

There is pretty certainly nothing with the Batterizer name on for them to ship.
Pretty sure they're saying that only so that people continue to believe they actually have existing stock to ship - when they have nothing produced at all.

[PeterL]

We never believed Batteroo had manufactured many units so when they say they're going to ship some of their existing Batteriser branded inventory, I assume they mean all of it or all they can within a certain timeframe (see below).

-snip-

Edit to add: The pdf is at http://www.plainsite.org/dockets/307r4n75a/missouri-eastern-district-court/energizer-brands-llc-v-batteroo-inc/

The 'Soon of the past..' quote has found it's way to a legal document: 

44. Indeed, on May 2, 2016, only 19 days before Batteroo’s abandonment of the
BATTERISER and BATTERISE marks, Batteroo posted a response on Facebook to a consumer
inquiry about availability acknowledging its ongoing delays:
As soon as we have a date, you'll have it. Unfortunately, the best
we on the Facebook page can say is that the current ‘soon’ is
much, much closer than the ‘soon’ of the past. Previously, dates
were given, and they weren’t met. We don’t want that to happen
again. Ever. The next time you have a date from the Batteriser
team, it will be official and definitive: no ambiguity, no surprises,
no delays. In this home stretch, we ask for your patience and
understanding, while extending the guarantee that the product will
be everything we promised.
A capture of this post is attached as Exhibit E. The post makes no mention of Energizer or the
Opposition proceeding, but demonstrates that the product is not yet ready for distribution.

And just like me Energizer thinks that Batteroo is responsible for whatever is posted by Facebook-Batteroo.

[drussell]

And just like me Energizer thinks that Batteroo is responsible for whatever is posted by Facebook-Batteroo.

Well, if it were not a legitimate official representation for Batteroo, most certainly their top-notch crackerjack legal team should have gone after whoever was causing those illegitimate, unofficial Facebook shenanigans...  Shouldn't they have?! 

TLDR: Batteroo knows exactly what those Facebook people are saying...

As for the people above who don't fully understand how trademark protection works...  Just because you don't have a trademark doesn't mean you can't sell your product with a given name but if you can forsee a situation that may be construed as causing confusion it would most certainly be a poor choice of action.  Likewise if you HAVE a trademark on a name or design mark, you still have to defend it.  Having the registration means nothing unless you defend it, it merely gives you a leg up in legal standing, that you officially registered it (the (c) in a circle versus the TM stating we claim this mark). 

Nothing legally forbids Batteroo from shipping an item with the Batterizer name on it, it's just a very stupid thing to do when you know you're already on Energizer's radar for your BS product (that humorously happens to claim Energizer's products are a deceptive sham that only gives you 20% of claimed capacity .. LOL ..)  Energizer needs to DEFEND their marks, which is what they began by filing the recent actual lawsuit in anticipation of more BS from Batteroo.  Realize that this is totally different than Energizer's opposition to Batteroo's proposed trademark of Batterizer (the application which Batteroo abandoned, thus Batteroo have no Batterizer trademark...)

You don't have to get "approval" from anyone to sell an item with a given name but it is always a good idea to do some basic searching of existing products, company names and trademarks, etc. before you do.  We did a LOT of searching for these kinds of things in our office when we did trademark and design searches in the '80s and '90s...

This is Intellectual Property 101, folks....

[EEVblog]

There is pretty certainly nothing with the Batterizer name on for them to ship.
Pretty sure they're saying that only so that people continue to believe they actually have existing stock to ship - when they have nothing produced at all.

There is absolutely no advantage for them to say this if they didn't actually have Batteriser branded product to ship.
It had been months since the last update, near everyone had forgotten about it all, so they either could have just let it die quietly, or if they now have the new Batteroo branded product to ship then they could have just said that.

[EEVblog]

You don't have to get "approval" from anyone to sell an item with a given name but it is always a good idea to do some basic searching of existing products, company names and trademarks, etc. before you do.  We did a LOT of searching for these kinds of things in our office when we did trademark and design searches in the '80s and '90s...
This is Intellectual Property 101, folks....

Batteroo in their Trademark defence claimed (obviously) that the name wasn't intended to sound similar to Energizer and play off their name. But to anyone with a mental level over maybe a 8 year old could see that's what they were trying to do, it was very deliberate and they knew it. They took a chance and they got busted for it.
There are two big battery companies in the world and all your marketing is based around using those companies products, and your product name just happens to be similar to one of them, yeah sounds like a coincidence 

[EEVblog]

We never believed Batteroo had manufactured many units so when they say they're going to ship some of their existing Batteriser branded inventory, I assume they mean all of it or all they can within a certain timeframe (see below).
I've just read the filing from Energizer's lawsuit where they are seeking damages. It is interesting reading. They deny they ever sought to stop batteroo from shipping existing inventory
Highlights for me were:

• During the trademark negotiations, Energizer offered a 6 month phase out period so existing inventory wouldn't get scrapped.
• Energiser’s Opposition sought only denial of Batteroo’s trademark applications and could not have resulted in an injunction against sales of BATTERISER products.
• Batteroo agreed to send Energizer a sample unit after it shipped to consumers, expected March 2016. It has not yet shipped one to them.
  
• Energizer quotes bateroo Facebook post as deceptively claiming Energizer was blocking shipping.
• Repeated claims that Batteroo was not ready to ship throughout the entire trademark negotiation process.

Choice quotes:

46. On information and belief, Batteroo still did not have a viable production run of its
product prior to or during the Opposition proceeding. Batteroo recently sent an email message to customers, notifying them that Batteroo would be changing the name of the BATTERISER product as a result of the Opposition filed by Energizer. In the message, Batteroo attempted to use Energizer’s Opposition as an excuse for further delays, falsely implying that Energizer was responsible for Batteroo’s product delays. The message also falsely implies that Energizer prohibited distribution of already manufactured goods.

This is certainly  worthy!
Batteroo are playing with fire and they'll get burned. I wouldn't piss off Energizer.

The whole Energizer document reads like this thread, but written in legal english. I wonder if this thread was a handy chronology for their lawyers.
Edit to add: The pdf is at http://www.plainsite.org/dockets/307r4n75a/missouri-eastern-district-court/energizer-brands-llc-v-batteroo-inc/

No doubt they are reading this thread. Imagine the lawyer hours just reading this massive thread for evidence. It'd be in the tens of thousands of dollars.

[edy]

At this point, I'm not really surprised by anything Batteroo does with respect to legal stuff. But I am excited about one thing though... If it pans out to be true..... THEY ARE SHIPPING PRODUCT! Finally there will be something to test!    Now that is GOOD NEWS!

[ez24]

..... THEY ARE SHIPPING PRODUCT!

When pigs fly. 

[Brumby]

..... THEY ARE SHIPPING PRODUCT!

When pigs fly.

That's harsh...

... but probably accurate.

[ez24]

..... THEY ARE SHIPPING PRODUCT!

When pigs fly.

That's harsh...

... but probably accurate.

If my memory serves me right, a year or two ago, Dave ask for ideas on some sort of project.  I suggested that he fly pigs with a drone.  He did not, thus pigs do not fly.  I think it possible to build a drone that would fly a piglet and maybe train them to steer it.

[Brumby]

There is pretty certainly nothing with the Batterizer name on for them to ship.
Pretty sure they're saying that only so that people continue to believe they actually have existing stock to ship - when they have nothing produced at all.

There is absolutely no advantage for them to say this if they didn't actually have Batteriser branded product to ship.
It had been months since the last update, near everyone had forgotten about it all, so they either could have just let it die quietly, or if they now have the new Batteroo branded product to ship then they could have just said that.

A little part of me is wondering if Batteroo will still try to fly this puppy.  IF they do, then gaining some credibility will be vital - and one way of doing that is to take the opinion that they have no product to ship (which has been broadly expressed on this thread) and disprove it by shipping something (however impotent it may be).

Fan boys will then take this ONE point and celebrate it like the ultimate victory over the 'conspirators' - and claim everything espoused here is just as pure hogwash as the claim of not having a product to ship.

[Fungus]

At this point, I'm not really surprised by anything Batteroo does with respect to legal stuff. But I am excited about one thing though... If it pans out to be true..... THEY ARE SHIPPING PRODUCT! Finally there will be something to test!    Now that is GOOD NEWS!

I don't believe it.

Where's the photos of the production run?

[PeterL]

There is pretty certainly nothing with the Batterizer name on for them to ship.
Pretty sure they're saying that only so that people continue to believe they actually have existing stock to ship - when they have nothing produced at all.

There is absolutely no advantage for them to say this if they didn't actually have Batteriser branded product to ship.
It had been months since the last update, near everyone had forgotten about it all, so they either could have just let it die quietly, or if they now have the new Batteroo branded product to ship then they could have just said that.

Have you read the document in the link provided by rich?

In this document Energizer makes a case that:
a) The delay of the shipment of Batteriser's is not caused by the Trademark dispute,
b) Prior to the moment where Batteroo decided to drop the name 'Batteriser' production had not started yet.

And they base there information on Batteroo's own communication to their backers.

It looks like Batteroo is doing everything they can to make Energizer spend money on lawyers.

[Halcyon]

Imagine the lawyer hours just reading this massive thread for evidence.

Imagine all the highlighted remarks and notes scrawled in the margins! 

If my memory serves me right, a year or two ago, Dave ask for ideas on some sort of project.  I suggested that he fly pigs with a drone.  He did not, thus pigs do not fly.  I think it possible to build a drone that would fly a piglet and maybe train them to steer it.

They most certainly will! Have you seen http://bartjansen.tv/copter-company

If this guy can make a dead Ostrich fly, anything is possible! (The cat is my personal favorite. The best cat is a dead one. An even better one has a remote control.)



Sorry... back on topic now...

[romelec]

Dave has (had?) a flying pig (at 3:10) !

[SL4P]

...They most certainly will! Have you seen http://bartjansen.tv/copter-company

If this guy can make a dead Ostrich fly, anything is possible! (The cat is my personal favorite. The best cat is a dead one. An even better one has a remote control.)



Sorry... back on topic now...

Of course dead animals can fly!
How else would they get to heaven?
Bob Roohpavar can walk on water too - just ask him.

[d-smes]

Have you read the document in the link provided by rich?

In this document Energizer makes a case that:
a) The delay of the shipment of Batteriser's is not caused by the Trademark dispute,
b) Prior to the moment where Batteroo decided to drop the name 'Batteriser' production had not started yet.

And they base there information on Batteroo's own communication to their backers.

It looks like Batteroo is doing everything they can to make Energizer spend money on lawyers.

I agree- The document is worth a read and Batteroo REALLY made matters worse by being uncooperative.  As a result, we'll NOT see product and Batteroo will cease to exist. 
From the lawsuit document:  http://www.plainsite.org/dockets/download.html?id=237648495&z=d219f5ee 

WHEREFORE, Energizer seeks the following relief:
   A. Actual damages in an amount to be determined at trial;
   B. Batteroo’s profits in an amount to be proven at trial;
   C. The cost of corrective advertising, in an amount to be proven at trial;
   D. A permanent injunction prohibiting Batteroo, and its agents, servants, employees, attorneys and all other persons in active concert or participation with Batteroo, any and all further use of BATTERISER and BATTEROO, and any other colorable imitation of the ENERGIZER® Marks;
   E. An Order requiring Batteroo to destroy all materials bearing the infringing BATTERISER or BATTERISE marks, or any other colorable imitation of the ENERGIZER® Marks;
   F. A permanent injunction prohibiting Batteroo, and its agents, servants, employees, attorneys and all other persons in active concert or participation with Batteroo, any and all further false or misleading claims that Energizer is responsible for Batteroo’s inability to bring a product to market;
   G. Ownership of any and all domain names containing BATTERIZER, BATTERISER, BATTERISE, or any other colorable imitation of the ENERGIZER® Marks, including at least BATTERIZER.com, BATTERIZER.net, BATTERISE.com, BATTERISER.com, and BATTERISER.net;
   H. An award of treble, exemplary and/or punitive damages;
   I. An award of the costs of this action, including reasonable attorneys’ fees;
   J. Prejudgment interest; and
   K. Any other relief this court deems just and proper.

[EEVblog]

From the lawsuit document:  http://www.plainsite.org/dockets/download.html?id=237648495&z=d219f5ee 

WHEREFORE, Energizer seeks the following relief:
   A. Actual damages in an amount to be determined at trial;
   B. Batteroo’s profits in an amount to be proven at trial;
   C. The cost of corrective advertising, in an amount to be proven at trial;
   D. A permanent injunction prohibiting Batteroo, and its agents, servants, employees, attorneys and all other persons in active concert or participation with Batteroo, any and all further use of BATTERISER and BATTEROO, and any other colorable imitation of the ENERGIZER® Marks;
   E. An Order requiring Batteroo to destroy all materials bearing the infringing BATTERISER or BATTERISE marks, or any other colorable imitation of the ENERGIZER® Marks;
   F. A permanent injunction prohibiting Batteroo, and its agents, servants, employees, attorneys and all other persons in active concert or participation with Batteroo, any and all further false or misleading claims that Energizer is responsible for Batteroo’s inability to bring a product to market;
   G. Ownership of any and all domain names containing BATTERIZER, BATTERISER, BATTERISE, or any other colorable imitation of the ENERGIZER® Marks, including at least BATTERIZER.com, BATTERIZER.net, BATTERISE.com, BATTERISER.com, and BATTERISER.net;
   H. An award of treble, exemplary and/or punitive damages;
   I. An award of the costs of this action, including reasonable attorneys’ fees;
   J. Prejudgment interest; and
   K. Any other relief this court deems just and proper.

That's nasty. Batteroo are up the proverbial brown creek, I hope they have a paddle.
They are going after the Batteroo name too? 

[Brumby]

That's what was in the suit ... but what was the actual outcome?

[Kilrah]

They are going after the Batteroo name too? 

To my understanding that's worth what it's worth, the mention of "batteroo" in the quoted block only relates to (paraphrased) "Batteroo must not do things that could infer a link with Energizer", ie. not use anything in "ise(r)" anymore, no problem with their "batteroo" company name.