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.
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.
Agreed. Without addressing the specifics of this instance, I’m in favor of policies that prevent keyword stuffing.
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".
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.
If 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.
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.
You 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)
This is about trademark usage.
At least around here, unfair comparative advertising
is a 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).
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.
You 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?
I'm thinking "The included probes are fully compatible with the Fluke 179" 
Will manufacturers complain about this one too, "Fully compatible with all major multi brand multimeters."
Assuming it is referring to their trademarks.
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?
Yeah, 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.
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.[1][2][3] 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!
Ed
[1]
https://www.nytimes.com/2019/06/24/smarter-living/how-a-brand-name-becomes-generic.html[2]
https://www.consumerreports.org/consumerist/15-product-trademarks-that-have-become-victims-of-genericization/[3]
https://tvtropes.org/pmwiki/pmwiki.php/ScrewedByTheLawyers/RealLifeAn interesting case involving McDonald's came in the early 1990s, when they sued a South African businessman who was opening hundreds of fake McDonald's restaurants, complete with Big Macs. They lost this case because they had abandoned the trademark (not having operated in South Africa during The Apartheid Era), and ended up buying the guy out.
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.
It'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.
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.[1][2][3]
Fluke 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".
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.
I'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.
Suggestion. Call your contacts at Fluke and ask what Hell is going on.
Nope, 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.
Take this as a possible compliment. Fluke are afraid, very afraid. That's if their executives even know what Vero is, or multimeters are
But they will certainly take note of a YouTuber with close to a million subscribers
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
Holland 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 lawsuits
https://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.
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.
Yeah, 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.
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.
this part I agree with it should not be in the search term
It 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.
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.
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.
You 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?
It 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.
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.
You didn't say -- did you use "Fluke" in the title of your listing, or somewhere in the description?
It has to be in the description: https://www.ebay.com/itm/223244201244
Not 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?
Yes, it is certainly clear to me that the problem is one of saying a specific competitor product is worse. Use the word "Fluke" and you're asking for attention.
However, if you were to make an indirect reference - 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 a mythical "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.