Fluke took down my Ebay listing for Trademark infringement

[EEVblog]

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-modal
https://www.eevblog.com/forum/chat/fluke-took-down-my-ebay-listing-for-trademark-infringement/msg5410703/#msg5410703

[BrianHG]

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...

[Halcyon]

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"."

[IanB]

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.

[EEVblog]

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.

FYI, I never used the logo, it was simply the text Fluke used in a comparative sense.

[EEVblog]

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"."

I'll go with that 

[MrMobodies]

I wonder, is that anti-competitive behaviour from Fluke and Ebay?

[JPortici]

I wonder, is that anti-competitive behaviour from Fluke and Ebay?

There 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

[SiliconWizard]

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.

[coppercone2]

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 of stagnation


It would be nice if we can fire everyone and keep selling our product forever! RIDE THIS BABY TILL I RETIRE !!!!

#stagnation

[eleguy]

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.

[BrianHG]

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.

[RoGeorge]

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.

[EEVblog]

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.

It'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=140087210000
Fluke 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.

[EEVblog]

I vaguely remember something similar about fair advertising here, in EU, meaning you are not allow 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.

This is about trademark usage.

[EEVblog]

I wonder, is that anti-competitive behaviour from Fluke and Ebay?

Nothing 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.

[Halcyon]

I vaguely remember something similar about fair advertising here, in EU, meaning you are not allow 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.

This is about trademark usage.

I 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?

[EEVblog]

I'm thinking "The included probes are fully compatible with the Fluke 179" 

[EPAIII]

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.

[jpanhalt]

'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.

[tggzzz]

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.

But now you can have some fun

Change the wording to "better than Flooke[sic] (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".

[jonpaul]

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-c0b56daf0fd6
That 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   187 


Bon Chance!

Have an Absolutely fantastic day!

Jon (EE '68)

(since 2003, I have survived and won 160 IP litigations )

[watchmaker]

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!

[nctnico]

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.

Agreed. 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.

[tggzzz]

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.

Agreed. 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.

Shaming competitors was one thing that was verboten at HP, at least when Bill and Dave were alive.