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The legal definition of counterfeit product (as realized by CBP's jurisdiction) boils down to: Bares a Registered Trademark and does not have a signed letter o

The legal definition of counterfeit product (as realized by CBP's jurisdiction) boils down to: Bares a Registered Trademark and does not have a signed letter of authenticity by the trademark holder authorizing its import. That is super broad and covers a lot of things most people would think to be false positives like legit items sold second hand. But even that doesn't cover thinking OnePlus Buds are AirPods.

microcolonel 6y ago
Isn't the fact that nobody involved in this seizure could tell that they weren't AirPods counterfeits a form of evidence that OnePlus Buds may in some circumstance be AirPods counterfeits?
- eganist 6y ago
  Not if oneplus has any protections for their design. But ianal
- lmm 6y ago
  Maybe it's evidence that AirPods are counterfeit OnePlus Buds. If you want your customers to be assured of getting the genuine article you should put an actual trademark on your product. Apple shouldn't get to claim that anything with a minimalist design is a counterfeit Apple product.
  - p49k 6y ago
    They look exactly like AirPods, though, which is a design Apple created, as an evolution of EarPods. When EarPods were released, they looked unlike any earbuds ever released, despite the fact that ear buds as a product have existed for 30 years or more. If it were as simple as “minimalist design” any of the 100+ ear bud manufacturers of the past 30 years could have designed something similar. Apple never gets enough credit for their design work in the general tech community. Lots of design work can look “obvious” or minimalist in hindsight.
- Nasrudith 6y ago
  Despite the resemblance to the "idiot in a hurry test" not really any more than the police mistaking flour for cocaine means that grain mills are massive criminal enterprises that through some sinister alchemy have managed to transmute wheat to cocaine.
bjt 6y ago
There's more than just trademark. I used to work with some attorneys formerly at the US International Trade Commission. From what they told me, most goods that they had seized at the border were caught in "design patent" cases. It was interesting to me how prominent that area of law was in practice, given that we never covered it in my IP classes.
- redis_mlc 6y ago
  Apple has an internal wine and cheese event from time-to-time for staff dedicated exclusively to design patents. I was also surprised that was a big thing initially, especially when you know where a lot of designs were inspired from. :) https://www.fastcompany.com/3016910/apples-inspiration-for-the-ipod-bang-olufsen-not-dieter-rams https://www.fastcompany.com/3016910/apples-inspiration-for-t... https://www.cnet.com/news/time-is-money-apple-pays-21m-for-clock-design-says-report/ https://www.cnet.com/news/time-is-money-apple-pays-21m-for-c...
zorked 6y ago
There's this older Sparkfun story. They had their multimeters seized for being yellow: https://www.sparkfun.com/news/1428 https://www.sparkfun.com/news/1428
- segfaultbuserr 6y ago
  Trademarks are not limited to text, the gray and yellow color scheme is a Registered Trademark by Fluke [0]. Nowadays 2/3 of the cheap meters use this color scheme, at this stage this trademark is effectively dead, most people will not connect this color scheme to Fluke. I didn't even know it came from Fluke (neither did SparkFun I guess), until this incident. But unless Apple registered something similar for shape or the color of the AirPods, or somehow patented its design, it's not an infringement, and the CBP cannot seize them. Now the question is, how much does it cost to sue the CBP... [0] https://tsdr.uspto.gov/#caseNumber=75934005&caseType=SERIAL_NO&searchType=statusSearch https://tsdr.uspto.gov/#caseNumber=75934005&caseType=SERIAL_...
  - shakna 6y ago
    > Trademarks are not limited to text, the gray and yellow color scheme is a Registered Trademark by Fluke Absolutely, trademarks can be made in a wider variety of things, but in this particular case... > Description of Mark: The mark consists of the colors dark gray and yellow as applied to the goods. The dotted outline of the goods is intended to show the position of the mark and is not a part of the mark. > Color(s) Claimed: Color is not claimed as a feature of the mark. Interpreting whether or not the gray and yellow color scheme is in fact a registered trademark seems... More difficult than just point to a form.
  - jsjohnst 6y ago
    > But unless Apple registered something similar for shape or the color of the AirPods, or somehow patented its design, it's not an infringement, and the CBP cannot seize them. Apple most certainly did get design patents for them. First relevant search result: https://www.patentlyapple.com/patently-apple/2017/09/apple-wins-7-design-patents-for-their-ragingly-popular-airpods.html https://www.patentlyapple.com/patently-apple/2017/09/apple-w... Not debating that patents are good things, especially in this case, but it is pretty obvious to me (as in, not a patent attorney) that they heavily incorporated Apple’s design IP.
rbecker 6y ago
Can't even import items without permission from the manufacturer? Funny how all the free trade stuff never applies to consumers.
- henvic 6y ago
  What are you even saying? Why the flame? You probably have a perverted notion of free trade to say so. I defend free trade and this is an absurd. Free trade applies for both sides, and should be seen always unilaterally, without retaliation by state actors or third parties.
  - rbecker 6y ago
    I'm not flaming anyone, except Canadian trademark law. And in what way do you consider my view on free trade perverted? Don't you find that giving the trademark owner the ability to prevent imports restricts the free trade of people who bought their goods? Say I'm Canadian, I buy a Mercedes, and 2 years later, decide to sell it to a buyer in the US. Now Mercedes can prevent that sale, by not giving permission to export my car. At that point, isn't Mercedes a third party?
    - henvic 6y ago
      Uh? This is exactly what I am saying. You should be free to buy a Mercedes in Canada and sell in the US or to anyone else you want peacefully. Your original post seemed to be a criticism of free trade. It's not that the "free trade stuff never applies to consumers". Everything that the state does in the name of free trade is baloney and only works to give power to politicians or lobbyists. As I said in my comment before: free trade is really free when it is unilateral. When there is no politics involved.

microcolonel 6y ago

Isn't the fact that nobody involved in this seizure could tell that they weren't AirPods counterfeits a form of evidence that OnePlus Buds may in some circumstance be AirPods counterfeits?

eganist 6y ago
Not if oneplus has any protections for their design. But ianal
lmm 6y ago
Maybe it's evidence that AirPods are counterfeit OnePlus Buds. If you want your customers to be assured of getting the genuine article you should put an actual trademark on your product. Apple shouldn't get to claim that anything with a minimalist design is a counterfeit Apple product.
- p49k 6y ago
  They look exactly like AirPods, though, which is a design Apple created, as an evolution of EarPods. When EarPods were released, they looked unlike any earbuds ever released, despite the fact that ear buds as a product have existed for 30 years or more. If it were as simple as “minimalist design” any of the 100+ ear bud manufacturers of the past 30 years could have designed something similar. Apple never gets enough credit for their design work in the general tech community. Lots of design work can look “obvious” or minimalist in hindsight.
Nasrudith 6y ago
Despite the resemblance to the "idiot in a hurry test" not really any more than the police mistaking flour for cocaine means that grain mills are massive criminal enterprises that through some sinister alchemy have managed to transmute wheat to cocaine.

bjt 6y ago

There's more than just trademark. I used to work with some attorneys formerly at the US International Trade Commission. From what they told me, most goods that they had seized at the border were caught in "design patent" cases. It was interesting to me how prominent that area of law was in practice, given that we never covered it in my IP classes.

redis_mlc 6y ago
Apple has an internal wine and cheese event from time-to-time for staff dedicated exclusively to design patents. I was also surprised that was a big thing initially, especially when you know where a lot of designs were inspired from. :) https://www.fastcompany.com/3016910/apples-inspiration-for-the-ipod-bang-olufsen-not-dieter-rams https://www.fastcompany.com/3016910/apples-inspiration-for-t... https://www.cnet.com/news/time-is-money-apple-pays-21m-for-clock-design-says-report/ https://www.cnet.com/news/time-is-money-apple-pays-21m-for-c...

zorked 6y ago

There's this older Sparkfun story. They had their multimeters seized for being yellow: https://www.sparkfun.com/news/1428 https://www.sparkfun.com/news/1428

segfaultbuserr 6y ago
Trademarks are not limited to text, the gray and yellow color scheme is a Registered Trademark by Fluke [0]. Nowadays 2/3 of the cheap meters use this color scheme, at this stage this trademark is effectively dead, most people will not connect this color scheme to Fluke. I didn't even know it came from Fluke (neither did SparkFun I guess), until this incident. But unless Apple registered something similar for shape or the color of the AirPods, or somehow patented its design, it's not an infringement, and the CBP cannot seize them. Now the question is, how much does it cost to sue the CBP... [0] https://tsdr.uspto.gov/#caseNumber=75934005&caseType=SERIAL_NO&searchType=statusSearch https://tsdr.uspto.gov/#caseNumber=75934005&caseType=SERIAL_...
- shakna 6y ago
  > Trademarks are not limited to text, the gray and yellow color scheme is a Registered Trademark by Fluke Absolutely, trademarks can be made in a wider variety of things, but in this particular case... > Description of Mark: The mark consists of the colors dark gray and yellow as applied to the goods. The dotted outline of the goods is intended to show the position of the mark and is not a part of the mark. > Color(s) Claimed: Color is not claimed as a feature of the mark. Interpreting whether or not the gray and yellow color scheme is in fact a registered trademark seems... More difficult than just point to a form.
- jsjohnst 6y ago
  > But unless Apple registered something similar for shape or the color of the AirPods, or somehow patented its design, it's not an infringement, and the CBP cannot seize them. Apple most certainly did get design patents for them. First relevant search result: https://www.patentlyapple.com/patently-apple/2017/09/apple-wins-7-design-patents-for-their-ragingly-popular-airpods.html https://www.patentlyapple.com/patently-apple/2017/09/apple-w... Not debating that patents are good things, especially in this case, but it is pretty obvious to me (as in, not a patent attorney) that they heavily incorporated Apple’s design IP.

rbecker 6y ago

Can't even import items without permission from the manufacturer? Funny how all the free trade stuff never applies to consumers.

henvic 6y ago
What are you even saying? Why the flame? You probably have a perverted notion of free trade to say so. I defend free trade and this is an absurd. Free trade applies for both sides, and should be seen always unilaterally, without retaliation by state actors or third parties.
- rbecker 6y ago
  I'm not flaming anyone, except Canadian trademark law. And in what way do you consider my view on free trade perverted? Don't you find that giving the trademark owner the ability to prevent imports restricts the free trade of people who bought their goods? Say I'm Canadian, I buy a Mercedes, and 2 years later, decide to sell it to a buyer in the US. Now Mercedes can prevent that sale, by not giving permission to export my car. At that point, isn't Mercedes a third party?
  - henvic 6y ago
    Uh? This is exactly what I am saying. You should be free to buy a Mercedes in Canada and sell in the US or to anyone else you want peacefully. Your original post seemed to be a criticism of free trade. It's not that the "free trade stuff never applies to consumers". Everything that the state does in the name of free trade is baloney and only works to give power to politicians or lobbyists. As I said in my comment before: free trade is really free when it is unilateral. When there is no politics involved.