Comparison Yanmar lawsuit.

[Car Doc]

I dont know shutting down all the gray dealers would seem pretty lucrative to me they are a small niche market but still a factor in the used CUT market.

Whatever the real reason is liability or competing with their self's. What about the ones who run before they get the letter that wont cost Yanmar any money and makes the market a bit bigger?

These tractors have been here a long long time the fed apparently wasn't upset with anybody and thats who regulates commerce funny how it just comes to a head now humm.

 

[284 International]

Kubota and Yanmar are simply setting precedence in the legal system for a reason they are not responsible for the grey tractors. The lawyers have probably told them that trademark law is the quickest/cheapest/easiest way to limit their exposure.

I understand what you mean, but a survey of the previous lawsuits muddles this line of thinking. Kubota has heavily discounted ROPS available through their dealers for US market tractors only. Even the B6000, sold in identical trim in both markets, is only eligible for ROPS purchases if the serial number is a US market iteration. If you have a grey B6000, they won't sell you the ROPS.
From Yanmar et al V. Slater (https://docs.google.com/viewer?a=v&...pZtDfO&sig=AHIEtbRSgHHwPqR0ZGppH2USQ-UrTx7_3w)
"Yanmar America is correct that it owed no duty to Mr. Slater...Yanmar America had nothing to do with the design, manufacturing, or distribution of the tractor...we reverse and dismiss as to Yanmar America."

This case dealt with a man who had purchased a Vietnam rebuild. A few days after purchase, while mowing, it rolled onto the operator, killing him. The appeals court verdict (after Yanmar Japan and America were found partly liable) overturned the original jury verdict in a civil suit, dismissing themcase against both Yanmar Japan and Yanmar USA.

I also doubt that they are bringing the suit to try and affect the used market.

Yanmar would disagree with this. From the above cited case:"According to Yanmar America, each company had a separate interest in discouraging the sale of gray market tractors...Yanmar America wanted to protect the brand, and its profits..."

Kubota and Yanmar both sued importers who had registered the Zen-Noh name, making it legally their property, to prevent importation, again to protect their profits. I certainly support capitalist enterprise, and think profit motive is an exceedingly effective motivator. I'm not against Kubota or Yanmar making money. I am against them suing an entity or person who legally imports an item and sells it, just because the original manufacturer isn't getting a cut. This series of lawsuits was a miscarriage of justice, plain and simple.

There is an exceptional 5 part series on this subject at orangetractortalks.com, a Kubota-centric forum. ZEN-NOH and Kubota Part 5: Fallout | OrangeTractorTalks

 

[Car Doc]

Just a bit of info for conversation but last year a buddy of mine bought a sweet little YM1610D from Jossef tractor in Texas and it came with all the safety stuff. It was a VN tractor so its my belief there could have been plenty of dealers that were following the safety concerns but time will tell. fwtw

 

[ctlguy]

Well I read MOST of the posts here and I guess I fall into the minority catagory. I see no problem with an oem controlling where/how units are imported myself but just an opinion. I think that there is even more things to come regarding equipment re-sellers in general. I know of a specific incident where a tractor jockey bought a slew of late model tractors w/ remaining warranty and placed them near multiple dealers. The Jockey later recieved a certified letter from the oem had recieved the s/n's of the units had and cancelled all remaining warranty. Was it legal? Don't know/care it did not go to court and the Jockey re-thought his position on how and where he would market used tractors. This has probably happened before/again and will most likley be played out in court as well. My two cents.. An oem that does not harshly protect its dealer network will have a tougher time getting premium dealers I think.

 

[clemsonfor]

I have a VN tractor. MIne i paid extra for a ROPS. but have no seat belt, some did but the unit i got did not?? I had them remove the loader off one of the tractors so i just said its not a big deal to me so i took the one without. I DO NOT have a pto sheild though, and could have not oppted for the rops.

The ROPS is not us safty tested but appears strong enough to support the tractor weight in a roll over, will it ????? But there are many homemade ROPS out there on US tractors that may or may not or already HAVe survived a roll over?

 

[284 International]

Well I read MOST of the posts here and I guess I fall into the minority catagory. I see no problem with an oem controlling where/how units are imported myself but just an opinion.

I certainly support the right of anyone to reach their own conclusions on a topic.

There is a very active hot rod/restoration demographic in Nordic countries. The Ford Model A in particular is a very popular car there, just as it is here. Model As were sold in those countries, along with many others, sometimes with local design peculiarities to suit them to the country of sale demographic.

If I bought a Model A from a Swedish guy, shipped it over here, drove it, fixed it up, and then wanted to sell it, should Ford be able to sue me for listing it on eBay, for infringing their trademark, since they still sell Ford cars? Should Ford be able to control me buying the unique variants of Model A parts, even after they have been sold?

What Yanmar and Kubota are arguing is that they maintain the ability to control advertisements containing even a picture of their 30 year old tractors, any mention of their name, logo, or paint color. They say me selling my tractor on eBay infringes their trademark. They say selling Model A hot rods built from cosmopolitan components is under their control, and I do not have the right to buy, import, or sell those parts, since they maintain control of the trademark.

I absolutely support companies in setting whatever policy restrictions they like on dealers. I advocate for businesses making money through intelligent, clever, useful endeavors. Preventing me from displaying a picture of my own tractor for sale is none of those things. I believe that once a company has sold their product, the purchaser should be able to sell it to whomever he wishes, and take a picture of it, list it on an auction site, website, or whatever other medium he pleases. Yanmar and Kubota think they should be able to decide that for me.

Here is the legal question in a nutshell: Does having the company's name on a product mean they get to decide whether I can advertise it for sale, or not?

I think it does not. Or, at least, should not. We will see what the courts decide.

An oem that does not harshly protect its dealer network will have a tougher time getting premium dealers I think.

This is an entirely different proposition in my view. Of course the company should be able to set their own terms for dealer franchise agreements. If Kubota doesn't want their dealers to work on other brand's equipment, they should be able to do that. A used car dealer does not have a franchise agreement with Chevy, Ford, or whomever he happens to have on hand. He is not acting as Honda's agent. He is selling used cars, and whatever product he has on hand is what he sells. Some choose to deal in one type, brand, or other limited market, but they are not dealers for Chrysler. I don't think the car manufacturers should be able to decide if a used car lot should be able to sell their products or not. Yanmar and Kubota think they should be able to sue any entity who sells or advertises their tractors, since they built the tractors. I disagree, but, again, we will have to see what the courts decide.

 

[Villengineer]

I understand what you mean, but a survey of the previous lawsuits muddles this line of thinking. Kubota has heavily discounted ROPS available through their dealers for US market tractors only. Even the B6000, sold in identical trim in both markets, is only eligible for ROPS purchases if the serial number is a US market iteration. If you have a grey B6000, they won't sell you the ROPS.

"Yanmar America is correct that it owed no duty to Mr. Slater...Yanmar America had nothing to do with the design, manufacturiYanmar would disagree with this. From the above cited case:"According to Yanmar America, each company had a separate interest in discouraging the sale of gray market tractors...Yanmar America wanted to protect the brand, and its profits..."{/QUOTE]

First, Kubota and ROPS. In most cases if an OEM offers a safety item item at a heavy discount like you've described it's probably due to a settlement, either civil or a govt case. The legal system treats this as Kubota effectively admitting that they knew the risk, therefore responsible, but have attempted to rectify it by offering the discounted fix. This will often limit, or remove, future liability in similar cases. The reason they will not sell the ROPS for grey models, similar or not, is because that would then, in the legal system, pull all those tractors into Kubota's liability "pool".

As far as the Yanmar case is concerned, a few things: 1) That is an appeal of a case that Yanmar initially lost (jury case if I read correctly). That means that Yanmar has spent a lot of $$$ defending themselves against the type of suits we've been discussing. They just won it Feb. of this year, so the current suit would have been in the works before they knew the verdict. The new suit could be doubling down or hedging a potential loss of the appeal. 2) "Profits" often carries both future and past meaning. 3) The original case started prior to Yanmar re-entering the market under Yanmar America. It will be much harder going forward defending themselves since the common juror will have a lot more difficulty distinguishing between Yanmar Japan/Yanmar America and Yanmar Japan/Cub Cadet by Yanmar. Obviously the jury in the initial case didn't see a difference.

I think you nailed it on the head in the part about the Zen-Noh name. I do believe that Yanmar and Kubota are trying to make the importing the greys illegal. However, if you look at the numbers of new compacts sold verses the impact of the grey market, I would still say the profit protecting is from potential loses incurred in the legal system.

 

[284 International]

The reason they will not sell the ROPS for grey models, similar or not, is because that would then, in the legal system, pull all those tractors into Kubota's liability "pool".

This still undercuts the idea that they are using their trademark infringement suit to protect themselves against liability. They have decided to sell ROPS at a discounted price for only their US market machines. If not selling anything to support grey market tractors obviates them of responsibility, it seems that they have done their due diligence, and the trademark lawsuit would not be applicable.

I don't think that any of the entities, whether the seller, the manufacturer, or the importer, should bear any responsibility for an operator's careless action. These tractors are not injuring people because of improper design or shoddy build quality. The operators injure themselves by using them in a manner that causes injury. While sad and unfortunate, the blame is not with the manufacturer anymore than it would be with Cutco if I amputated a finger trying to hack through some meat with my big kitchen knives. Were the tractors improperly assembled, or defective in quality, things would be different.

I agree with you that the lawsuits are expensive. These are unjustified too, and should not be tolerated either. Yanmar, Kubota, and the other collective companies are not responsible for the grey imports when they hurt people. Well and good. Since they are not culpable for damages, they also are not able to limit or restrict their import or sale. It cannot be both ways, and their grey products ought to be beyond their control, both in responsibility and in marketing.

However, if you look at the numbers of new compacts sold verses the impact of the grey market, I would still say the profit protecting is from potential loses incurred in the legal system.

I agree with you here; I think that they are separate, though. The tractors ought not be regarded as the trouble, in my opinion. The legal expenses for Yanmar and Kubota can and should be rectified through means other than closing down otherwise legal trade. There is precedent for tort immunity with firearms manufacturers, who received protection from lawsuits filed by those persons shot with a particular manufacturer's firearm. This seems logical: if a criminal steals a Beretta, and shoots someone, it's not Beretta's fault, and they shouldn't have to answer to a lawsuit seeking money just because the bullet emerged from one brand or another's firearm. The trouble is the criminal, not the manufacturer.

Some tort immunity legislation would be much more sensible if loss mitigation from lawsuits were the desired effect. The inadequacies in our legal system should not be used an excuse to make things worse. The fact that jury trials often give awards for irrational reasons should not allow other irrational cases to be brought and tried. This trademark infringement tactic is absurd to me, and does not address concerns over whether the companies should be forced to answer junk lawsuits. The current lawsuit is an attempt to gain legal control over private party sales of personal property simply because these tractors were, 30 or more years ago, manufactured by a company with the same name.

 

[California]

I think the missing element in this discussion is the power of 'stakeholders' to send in lobbyists and have laws made to protect their interests. Government doesn't do things 'just because'. There is usually somebody behind the curtain who got things set up to work that way.

"Follow the money".

 

[ctlguy]

284, I agree that we disagree. I am a lay person so don't know the legal specifics of any of this but still defend the right of an oem to controll what products get imported to markets they where never intended for. I never have bought the correlation between the automotive industry and the equipment industry.