CBP Doubles Down On Seizing “Counterfeit” Apple AirPods

Yesterday I wrote about how US Customs and Border Protection (CPB) seized “counterfeit” Apple AirPods, though the story just keeps getting more interesting.

CBP seized “counterfeit” Apple AirPods

Last Friday, CBP put out a press release bragging about how it confiscated counterfeit Apple AirPod earbuds, as part of its mission of protecting Americans from various dangers. As the press release states:

On August 31, CBP officers seized 2,000 counterfeit Apple Airpod Earbuds from Hong Kong destined for Nevada at an air cargo facility located at John F. Kennedy International Airport. If the merchandise were genuine, the Manufacturer’s Suggested Retail Price (MSRP) would have been $398,000.

“CBP Officers are protecting the American public from various dangers on a daily basis,” said Troy Miller, Director of CBP’s New York Field Operations. “The interception of these counterfeit earbuds is a direct reflection of the vigilance and commitment to mission success by our CBP Officers daily.”

The TSA often puts out press releases about confiscating guns, so this doesn’t seem that unusual. There’s only one slight problem… these aren’t counterfeit Apple AirPods.

Rather these are OnePlus Buds. I’ll be the first to admit that I hadn’t heard of these before this story, though it states the name of the product on the package, and it’s easy enough to Google (and upon Googling, it’s clear that this is a big company).

OnePlus even Tweeted at the CBP, stating “Hey, give those back!”

Hah! Now, I suppose it’s possible that these are counterfeit OnePlus Buds, but then it seems like the CBP press release should state that, rather than claiming that these are counterfeit Apple AirPods.

CBP now claims these violate trademarks

Believe it or not, CBP is doubling down on its position of having seized these “counterfeit” Apple AirPods. As a CBP spokesperson tells The Verge:

“Upon examining the shipment in question, a CBP import specialist determined that the subject earbuds appeared to violate Apple’s configuration trademark. Apple has configuration trademarks on their brand of earbuds, and has recorded those trademarks with CBP. Based on that determination, CBP officers at JFK Airport have seized the shipment under 19 USC 1526 (e).”

That still raises the question of why CBP claimed that these were counterfeit Apple AirPods, rather than claiming that they were seizing OnePlus Buds, when the packaging was so obvious. A CBP spokesperson answered the question as follows:

“CBP’s seizure of the earbuds in question is unrelated to the images or language on the box. A company does not have to put an ‘Apple’ wordmark or design on their products to violate these trademarks.”

This is rather bizarre because:

  • OnePlus Buds are already for sale in the US, so it’s not like this has been the first shipment
  • Apple hasn’t filed a lawsuit over the OnePlus Buds, and they continue to be for sale in the US

Bottom line

I’m not really sure what to make of this situation anymore. If CBP really thought this was about trademark infringement rather than being a counterfeit product, you’d think the initial press release would have stated that.

It sure seems to me like CBP is simply doubling down on its press release and trying to save face.

Do OnePlus Buds violate the configuration trademark of Apple AirPods? I don’t know. While I suppose it’s good that this is something that CBP looks into, you’d think Apple would pursue legal action if it had any merit…

What do you make of this situation?

(Tip of the hat to Vidit)

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Johnny Guest

There are cheaper ones but with good features just under 40 bucks. many of the <a href="https://bit.ly/best-open-ear-earbuds" rel="nofollow ugc">best open ear earbuds</a> today are pretty good already. Just my opinion.

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Kent Member

From my vantage, this move is purely political.

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Kent Member

Ok - I see a reference to the Lanham Act above. As someone who regularly advises companies on their IP, the Lanham Act does indeed include trademark violations and false advertising. However, the terms are rather loosely interpreted. In this case, Apple argues that OnePlus has imitated the airpod design to deceive buyers. However, OnePlus will most probably refule that the products are clearly labelled and as such the consumer is informed that these are not airpods. The case will then most probably proceed to the design aspects and trademark infringements around form and appearance, which become difficult to to judge. Designing around IP is not unethical, but a commonly allowed process. I suspect that OnePlus IP analysts have conducted a strong freedom-to-operate study and have advised their engineers on how to design around the product with sufficient differences. I won't be surprised if even the color, although similar, is of a different shade/tint so Apple cannot claim trademark infringement.

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Dusty Member

@Rufus Once again, that's not counterfeiting because there is no intent to deceive the customer about what they're buying. By definition, in order for it to be a counterfeit as CBP claimed they were there MUST be an attempt to make the customer think they are actually buying an Apple Airpod instead of whatever OnePlus calls them. This is obviously not the case here. You're claiming an entirely different legal infringement from what the CBP claimed was happening. But you do you, I'm sure Apple appreciate you defending them on the internet.

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Morgan Diamond

Apple love fake copies like this as when people see them, they think they are real. So then they are like lots of people have them maybe I will buy a pair (real ones - better quality) to. Plus they do look slightly different.

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