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.

 

[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.

 

[284 International]

Ctlguy, I'm certainly not a legal expert either, and don't claim to be any authority or have the only justifiable opinion on this or some other subject.

If the correlation between the automotive and equipment industries was unclear, the fault was mine. I was trying to construct a comparison between two sets of manufacturers, and didn't do a good job. That's not your problem, it's all on me.

My intent was to compare importing obsolete cars and their parts for use in this market with importing obsolete tractors and their parts; I see them as analogous.

I don't think Ford should be able to sue me and then get an injunction prohibiting me from advertising used parts or vehicles, nor should Yanmar be able to do the same.

Since your perspective is different, there is definitely the probability that I haven't yet encountered or considered additional information that may alter my opinion on this subject. I look forward to learning from you.

 

[Eyecatcher]

I'm a little of kilter here, I owned a 336D for over 10 years, and was completely happy with it, until I got it hot while discing. Chaff (as I thought) off the weeds I was discing, had plugged up the screen in front of the rad. I cooled it off with a garden hose, washing out the rad fins, and went back to work.
It reheated almost immediately. I shut it down and pulled the rad. It was obvious that the dust in the fins had turned to mud when I hosed it down, and the heat of combusion baked it. I took the rad in for a rbld, and it worked fine, except, now I was blowing smoke out the exhaust stack, and I could see a bit of oil running down the sides of the stack. Everyone I consulted about the problem, said the Yanmars had steel rings, and by getting it hot, I had taken the temper out of the rings. I was quoted $6k for an engine rbld. About a month prior to the problem, I had installed a new, after mkt
muffler from one of the leading aftermarket parts suppliers. I sold the tractor for $5K. I paid $3400 and spent 3K for an fel. Demonstrated the smoke problem to the new owner, and he said that didn't bother him, so a deal was made. About a week later, he called me, and said he was grading his driveway and there was a loud bang agreat puff of black smoke, him and the tractor covered with soot, and a glob of something or other came out of that muffler. It never smoke again!!! So much for after market parts. But the buyer got a **** of a deal, and I got a down pmt for a new tractor.
I bought an EX450, one of the CCY machines. It'll never be the tractor the old 336D was, even with 22 more horse power - Factory Service? Not from
Lazenby in Hampton Fl. I think they're good with the lawn mowers they sell, but they know nothing about tractors. They also have a 3 week backlog for svc. They had mine for 2 weeks for a hydro prolem and never put a wrench on it. Yanmar America can't decide if there's a problem or not. FEL is almost inop, but they don't think there's a problem. I know the 336D wasn't a grey market, but I'd rather have another one for $6400 than an EX (which by the way is discontinued) for $26K.

\

 

[Villengineer]

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.



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.

I agree with you. The problem lies in that the US legal system and common sense are two totally different things. Ask McDonalds about coffee. I know coffee is hot, you know coffee is hot, but they still had to pay out and now every cup of coffee sold by them has "caution hot" all over it. It cost them a ton of money and will cost them, and every other place that sells coffee, a little bit each day due to the extra printing or molding that goes into each lid or cup. As far as Kubota ROPS and trademark are concerned, they would use both the lack of support for the grey and the trademark suit to try and squash every potential suit at the lowest court level possible. Also if the trademark suit successfully prevents the import of grey models their exposure to liability, justified or not, decreases every year as grey tractors are removed from service for whatever reason.

I'm not an expert in this area by any means, I've just been in the loop on injury cases at a couple places I've worked. Like I said before, throw common sense out the window. Working for an international company, I also know the difficulties and pitfalls of products designed for one geographical market that seep into another. That's probably why I view this a little differently. Additionally, I think someone else already mentioned it, unless you are a company where laws are created specifically for your market in these areas, firearms and automobiles are examples, you can not rely on a single course of action to defend yourself.

 

[ctlguy]

Ctlguy, I'm certainly not a legal expert either, and don't claim to be any authority or have the only justifiable opinion on this or some other subject.

If the correlation between the automotive and equipment industries was unclear, the fault was mine. I was trying to construct a comparison between two sets of manufacturers, and didn't do a good job. That's not your problem, it's all on me.

My intent was to compare importing obsolete cars and their parts for use in this market with importing obsolete tractors and their parts; I see them as analogous.

I don't think Ford should be able to sue me and then get an injunction prohibiting me from advertising used parts or vehicles, nor should Yanmar be able to do the same.

Since your perspective is different, there is definitely the probability that I haven't yet encountered or considered additional information that may alter my opinion on this subject. I look forward to learning from you.

No worries, I wasn't necc referring to your reference of the automotive industry to the equipment world just the general purpose reference that gets thrown around comparing what the automotive guys do related to what the equipment guys do. I do believe that a fella should ALWAYS have the right to conduct a private sale in any fashion he desires but cross market contamination does throw a monkey wrench into that and can't be to surprising that the occasional issue will arise, like this one. That said I do think that the larger scale re-seller of grey market units does have a tendancy to degrade the product image hence lowering the value of the intended markets product. I don't think I am completly right on this subject just how I feel and am very curious to see how it all plays out. I think Yanmar has earned a pretty darned good reputation for both the US intended products and the Asian product. On an unrelated side note I was in a shop about ten years ago that had a little Asain tractor split that almost had to have been a grey market tractor as it was still filled with fish oil, STINKY

 

[284 International]

What do you see as different between the automotive and industrial/agricultural equipment spheres?

 

[kenmac]

Nothing we can do about it. Just watch the show & hope that yanmar looses. Here's some info of a suit that was filed by yanmar some yrs ago



http://www.vertikal.net/en/news/story/1141/

 

[California]

... On an unrelated side note I was in a shop about ten years ago that had a little Asain tractor split that almost had to have been a grey market tractor as it was still filled with fish oil, STINKY

Maybe that was whale oil. I've read that the last application where whale oil was superior was ... an ingredient in the A/T fluid for GM's early HydraMatic transmissions! Supposedly it was the only thing that could do the job for some reason and GM fought to continue using it.

 

[Car Doc]

(not to politicize the discussion but a simple observation of mine...)

All I can say about our current judicial system is I never in my wildest imagination would have believed I would be forced to buy something just because I am alive and breathing USA air and get fined something terrible if I did not do it. Like money just falls out of trees for the pee-on's working for a living. my .002

Now whether we will suffer personal injury from all this its a coin toss nothing is certain imho.

 

[ctlguy]

Probably, was just using fish oil as a general term.

 

[clemsonfor]

(not to politicize the discussion but a simple observation of mine...)

All I can say about our current judicial system is I never in my wildest imagination would have believed I would be forced to buy something just because I am alive and breathing USA air and get fined something terrible if I did not do it. Like money just falls out of trees for the pee-on's working for a living. my .002

Now whether we will suffer personal injury from all this its a coin toss nothing is certain imho.

Oh but since everyone has to buy it the price will come down!!! (after it was passed my insureance went up at 2x the rate it has in the past)Just like oil every one wants a finite resource so it must get cheaper. There only so many docs around and so much time, now we have how many more they claim on ins. 30 million, good luck getting an appointment now!!

Related note to this not tractors (and i will get off the box) my wife switched her OB doctor. The one she use to go to was the largest practice in town, also the one that took the medicade patients. She said it took 1-3 weeks just to get into see them! Hers now she can call and be seen the next day if she wants a consult or that week for most things. NO he is not a new doc or a sorry doc, just dosent take the medicade casses which clog up the lines. Now think of all these millions more folks who now think they have "free" healthcare that will be clogging up the lines as everything free is overused. And there will be many that get it free or with vouchers. They will work the state/medicade expansion thing out and it will happen so this will be the case. Those docs not acceping medicade or certain insurances (if allowed by law now?) will gt more patients as those try and seek less crowded offices then those offices will become crowded in time with the influx of actual paying customers. And now were a socialized system like canada or GB where you have to "wait" your turn for your surgery????

OK sorry back to tractoring and friviolus lawsuits disscussion.