Yesterday I wrote about how US Customs and Border Protection (CPB) seized “counterfeit” Apple AirPods, though the story just keeps getting more interesting.
In this post:
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!”
https://twitter.com/OnePlus_USA/status/1305366058501509121
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)
From my vantage, this move is purely political.
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...
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.
@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...
@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.
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.
@ed: while I am not an attorney or can speak to the law regarding violation of trademarks, copyrights, Lanham Act, etc. I will say that logic tells me that if the above posts claiming the higher quality tech these people make over Apple, than Apple would be aware of the infringements and taken a spot in court if they had a case. I think many on here have brains as well.
@dusty
I can label a bowling ball tennis balls but that does not change the fact that if it violates trade dress or trademark law that the tennis bowling ball is still intended to deceive and can be ceased. I am dumbfounded that the packaging is what everyone seems to worry about, and while it is part of the issue, the actual product is the violation regardless of what it is packaged in. You could...
@dusty
I can label a bowling ball tennis balls but that does not change the fact that if it violates trade dress or trademark law that the tennis bowling ball is still intended to deceive and can be ceased. I am dumbfounded that the packaging is what everyone seems to worry about, and while it is part of the issue, the actual product is the violation regardless of what it is packaged in. You could put it in Leggs pantyhose packages but it still is not immune from trademark trade dress regulations.
@Ed
Obviously not, as the products are clearly marked and branded as OnePlus. That's not counterfeit, because for an item to be a counterfeit it requires intent to deceive the buyer about what they are purchasing. You'd have a point if they were boxed like Apple Airpods but labeled Aple Airbuds, but it's clear as day they are a different company's product and there's no intent to deceive the consumer about what they're buying....
@Ed
Obviously not, as the products are clearly marked and branded as OnePlus. That's not counterfeit, because for an item to be a counterfeit it requires intent to deceive the buyer about what they are purchasing. You'd have a point if they were boxed like Apple Airpods but labeled Aple Airbuds, but it's clear as day they are a different company's product and there's no intent to deceive the consumer about what they're buying. The ones recently seized at Los Angeles seaport would actually be a clear case of counterfeiting, as those apparently were packaged to look like legitimate Apple products instead of packaged as a competing product like OnePlus.
Another seizure at Long Beach of 2,400 counterfeits. These apparently don't have the OnePlus name on them.
https://www.dailybreeze.com/2020/09/09/counterfeit-apple-products-seized-at-los-angeles-long-beach-seaport/
@Rufus is the first and only person on here with a brain. These headphones clearly violate Apple’s trade dress IP, because they are “likely to cause confusion...as to the origin, sponsorship, or approval of [the] goods.” Straight out of the Lanham Act. This is no different that someone importing black and copper two-tone batteries and being seized for violating Duracell’s trade dress IP.
It is so plainly obvious that these OnePlus earbuds are an attempt to deceitfully mimic Apple’s AirPods. There are thousands of permutations possible for wireless headphones, yet OnePlus chooses the same color, same style, same charging mechanism, and otherwise same appearance. This is deceptive trade dress infringement, plain and simple. OnePlus earbuds may not be counterfeit, per se, but they’re certainly designed to deceive and to steal market share away from an innovative leader while...
It is so plainly obvious that these OnePlus earbuds are an attempt to deceitfully mimic Apple’s AirPods. There are thousands of permutations possible for wireless headphones, yet OnePlus chooses the same color, same style, same charging mechanism, and otherwise same appearance. This is deceptive trade dress infringement, plain and simple. OnePlus earbuds may not be counterfeit, per se, but they’re certainly designed to deceive and to steal market share away from an innovative leader while offering no innovation of their own. This is the underlying essence of a counterfeit product.
At first I was blown away by the comments on this article, with so many bashing CBP and defending the OnePlus brand. Anyone that buys these earbuds is clearly trying to deceive those around them by projecting a false image of refined style, wealth, and success. But upon further reflection, these are probably all the same people that wear masks out of ignorance and fear while outwardly projecting false fronts of scientific reason and consideration for others in society.
Hey, CBP. When you're in a hole - STOP DIGGING!
Wireless earphones. Apple is just one provider of them called Airpods. Other companies do make wireless earphones and those tend to be MUCH cheaper than Apple.
The almighty Donald will soon require AAPL to pay CBP legal service fees...
... and Apple has been a member of Bluetooth since 2015 (IBM was a founder in 1998).
How do we know that Apple has a trademark on that style? And why is Bluetooth (not a company, but a "special interest group" of mostly non-Chinese manufacturers) allowed to put its name on a similar product?
T12 Bluetooth Earbuds
At $39.99 on Amazon, the T12 Bluetooth Earbuds are one of the better options for AirPod replicas. They feature Bluetooth 5.0, 30hr playback time, instant pairing, touch controls, built-in mic, and an IPX5 waterproof rating....
How do we know that Apple has a trademark on that style? And why is Bluetooth (not a company, but a "special interest group" of mostly non-Chinese manufacturers) allowed to put its name on a similar product?
T12 Bluetooth Earbuds
At $39.99 on Amazon, the T12 Bluetooth Earbuds are one of the better options for AirPod replicas. They feature Bluetooth 5.0, 30hr playback time, instant pairing, touch controls, built-in mic, and an IPX5 waterproof rating. As far as looks go, they deviate slightly from the AirPods design by featuring a flat surface. They still maintain a stylish look, and from a distance, they look like any normal pair of AirPods.
This article has a lot more details about how this is driven by the close relationship with Apple. I feel like this company clearly targets people who are too cheap to buy AirPods but want their friends to think they own a pair lol
https://www.wired.com/story/cbp-doubles-down-oneplus-buds-counterfeit-apple-airpods/
“Their analysis is supposed to be fairly methodical, where basically they look at the copy of whatever has been registered with the trademark office and visually compare that with what...
This article has a lot more details about how this is driven by the close relationship with Apple. I feel like this company clearly targets people who are too cheap to buy AirPods but want their friends to think they own a pair lol
https://www.wired.com/story/cbp-doubles-down-oneplus-buds-counterfeit-apple-airpods/
“Their analysis is supposed to be fairly methodical, where basically they look at the copy of whatever has been registered with the trademark office and visually compare that with what has been shipped in the container,” says Richard McKenna, a partner at Foley & Lardner LLP who focuses on intellectual property law. “The branding that appears on the allegedly infringing product, that’s really not for Customs to worry about. They’re just looking at whether the product configuration itself looks like the product configuration that is registered as a trademark.”
If it quacks like a duck, in other words, CBP is within its rights to call it a counterfeit duck. And the agency has familiarity with Apple counterfeits; they're so prevalent that Apple participates in the agency’s Donations Acceptance Program, in which private companies donate relevant resources to help CBP spot fakes. According to a 2019 Government Accountability Office report, Apple contributes digital microscopes, lighting cable detectors, and iPhone power cords to help the agency authenticate products. Procter and Gamble, Otter, Cisco, and other companies participate in the program, as well.
McKenna says the fact that OnePlus Buds are listed at a little over half the cost of AirPods may have registered as another strike on the CBP’s limited checklist. Selling something that looks so similar for so much less is likely to set off alarms.
Wow. It used to be that the US was all about competition. Seems those days are long gone.
Also seems some don't know what "counterfeit" means. It's "... with the intention to deceive or defraud."
There's nothing wrong with making compatible accessories. Many companies do it. And it's good for competition.
It's when they try to fool you that they're the main brand that they become counterfeit. That's not what happened here. Instead a...
Wow. It used to be that the US was all about competition. Seems those days are long gone.
Also seems some don't know what "counterfeit" means. It's "... with the intention to deceive or defraud."
There's nothing wrong with making compatible accessories. Many companies do it. And it's good for competition.
It's when they try to fool you that they're the main brand that they become counterfeit. That's not what happened here. Instead a company has come up with a good quality product, such that they have their own brand, and now CBP has decided to make it own laws up and execute them as well. That's just way over the line. Though Apple fanbois hate the idea of competition or giving anything up so will be happy about this anyway.
PERHAPS...just perhaps, all of you arm chair experts on patent law should excuse your selves and get a refresher on what is actually going on and then come back to the table.
The CBP officers are tasked to enforce actions as they are tasked by their management whom respond to the orders in many cases of a court of law. You may have heard of this since so many of you seem to act...
PERHAPS...just perhaps, all of you arm chair experts on patent law should excuse your selves and get a refresher on what is actually going on and then come back to the table.
The CBP officers are tasked to enforce actions as they are tasked by their management whom respond to the orders in many cases of a court of law. You may have heard of this since so many of you seem to act as jury, judge and executioner here.
The CBP act when tasked to enforce existing orders against trademark infringement or trade dress law. Lets use something previously mentioned McDonald's.
Lets say there is a company that already makes burgers under the MakBurger name. It is a direct competitor to McDonald's, but instead of a Big Mac they make a product called a BIG MAK name. Almost identical box and even has golden arches on the box. McDonald's seeks and receives an injunction against the use of this marketing and this box and name. MakBurger outsources its box printing overseas and the lead time is 2-3 months, so in between when they order the new boxs and they ship, the court grants the requested injunction. CBP is going to seize these boxes if ordered by the court under the injunction, just as they were to impound these headphones. The adjudication may not be final but if Apple were able to receive a temporary injunction pending litigation, something not unheard of, then again impound away.
The characterization as counterfeit is valid, under the concept of deceptive trade dress.
I think OnePlus should thank the CBP for bringing their ear buds to the attention of people, like myself, who were previously unaware they made earbuds.
CBP: Can they Be more Pathetic?
@Shangster11: counterfeit goods are those that purport to be something they aren't. OnePlus aren't passing these off as Apple goods, so the whole counterfeit assertion is out the window. Now, if there's a patent dispute (not sure Apple has sued OnePlus over the buds, but let's assume for argument's sake that they have), it's most certainly *not* the CBP's job to take action before the matter has been adjudicated by a court.
@Shangster11 - These aren't features that are novel to Apple though: lots of brands produce wireless earbuds, and they pre-dated Apple's design. Other brands used the case charger design and tapping on headphones for controls have been a technology for 20 years. I had a pair of Sony headphones that had tap controls on the right earcup in 2000. The hanging on the ear design is just a regular earbud with the cord cutoff -...
@Shangster11 - These aren't features that are novel to Apple though: lots of brands produce wireless earbuds, and they pre-dated Apple's design. Other brands used the case charger design and tapping on headphones for controls have been a technology for 20 years. I had a pair of Sony headphones that had tap controls on the right earcup in 2000. The hanging on the ear design is just a regular earbud with the cord cutoff - other brands have made earbuds for years prior to Apple making theirs.
This is another stunt by the Trumpites desperate to get reelected so that they can avoid prosecution; that they are once again brazenly using govt. resources to do so is no surprise. Of course, the half of the Ooo Es Ay that is totally brainwashed by Fox buys into this. They will pay $200 for Apple products vs, $100 for the equally good (or better) competition. Go figure. I hope OnePlus sues the CBP puppets for 10x the value of their arbitrarily seized property.
CBP has NOT BEEN DOING THEIR JOB for a long time! How can they let in all those knock off cars that are copies of Ford and Chevys, with fake badges calling them Honda or Toyota?
They clearly need to enforce the illegal copying of 4 wheels and engine, because those ear buds are just the tip of the iceberg!
We can sum up this fiasco in two words: Chynnnaa Badddd
"It sure seems to me like CBP is simply doubling down on its press release and trying to save face."
if the CBP wanted to save face then it should just admit the error. But that's not what the present administration does.
They can still make the point that they are on the look out for counterfeit stuff.
Just want to add a slight tangent. Apple was suing a company called PrePear, which is a food prep start up, because it has a logo of a pear with a stem... Yes, they are literally comparing apples to oranges, or pears in that matter.
Even we took the CBP at their word, there is a process to handle these situations. One which is clearly not being followed. They have appointed themselves judge, jury an executioner.
I strongly urge One+ to sue the pants of the CBP. I'm wagering they'd find the courts very open to an argument that this is usurpation of proper authority. And it's not like the current administration has had much luck in the courts.
CBP now runs the USPTO as well, apparently.
Jesus, what a f*cking clownshow.
I do need to apologize to Lucky for my previous statement " Lucky…stop judging on a subject where you are really not an expert in."
Upon re-reading, Lucky did not cast a "judgment", merely reporting the issue and asking our thoughts. Sorry dude!
@will, and the rest of you funny Americans, you guys know you are being a bit silly? Pretty much every Custom departments in most countries are tasked with monitoring and seizing counterfeits? Kinda....it's in their job description? I mean, they have to make the calls, and yes, whether it's the French Douane making the call to seize counterfeit Cartiers, Louis Vutton, Hermes, etc. (regardless whether or not LVMH asked for it), or Hong Kong's customs...
@will, and the rest of you funny Americans, you guys know you are being a bit silly? Pretty much every Custom departments in most countries are tasked with monitoring and seizing counterfeits? Kinda....it's in their job description? I mean, they have to make the calls, and yes, whether it's the French Douane making the call to seize counterfeit Cartiers, Louis Vutton, Hermes, etc. (regardless whether or not LVMH asked for it), or Hong Kong's customs prominently displaying the "counterfeits" they seized at the HKG airport in several locations at the airport. Yes, it is their jobs. It's not a uniquely US CBP's "stupidity".
For example:
https://www.customs.gov.hk/en/publication_press/press/index_id_2894.html
Remember when Apple tried to patent rounded corners, and sued Samsung over same? They're pretty rabid in their defense of anything that could even unreasonably be called intellectual property, so if they're not pursuing action here I can't imagine there's anything resembling a legal argument to what CBP is doing.
CBP personnel are now licensed trademark attorneys?
FWIW, customs authorities are obliged to enforce domestic intellectual property rights if they are notified to that customs authority. It looks like Apple registered its trade marks (and possibly patents) with CBP and likely also gave CBP a list of products that Apple contends infringes its intellectual property rights. This is why CBP says that they are counterfeit Apple AirPods (which in a sense they are, if they do indeed infringe Apple’s IPRs). At some...
FWIW, customs authorities are obliged to enforce domestic intellectual property rights if they are notified to that customs authority. It looks like Apple registered its trade marks (and possibly patents) with CBP and likely also gave CBP a list of products that Apple contends infringes its intellectual property rights. This is why CBP says that they are counterfeit Apple AirPods (which in a sense they are, if they do indeed infringe Apple’s IPRs). At some point Apple will have to take enforcement action against OnePlus, else CBP will be required to release the seized OnePlus Buds.
I'm sure every company wishes they could get CBP and governments to proactively do work for them in trademark infringement cases, particularly where they haven't actually filed any trademark infringement actions. Would save a lot of lawyers fees!
What’s with all the people telling you what not to write about? I mean, if you don’t want to read about this, don’t click this article.
The OnePlus earphones are being legally sold in the US right? If Apple is no filing a lawsuit against OnePlus, why should CBP care about it?
Just read a Tweet that the CBP is sticking to its claim that they seized counterfeit AirPods of Apple as the design of the seized OnePlus Buds is very similar to the Apple's!!! Tim Apple will be very happy seeing the CBP take up this issue on his behalf though Apple has never called out any of the other brands who followed suit with their AirPods similar in design to Apple's.
I think CBP is...
Just read a Tweet that the CBP is sticking to its claim that they seized counterfeit AirPods of Apple as the design of the seized OnePlus Buds is very similar to the Apple's!!! Tim Apple will be very happy seeing the CBP take up this issue on his behalf though Apple has never called out any of the other brands who followed suit with their AirPods similar in design to Apple's.
I think CBP is just plain stubborn here as the seized one's are clearly marked OnePlus Buds and never claim to be Apple branded.
Every design is an inspiration from another its just that one company takes a lead and their competitor follows suit with minor tweaks in the design. Since this blog is about planes I would like to point out B777 was first announced in 1990 and Airbus followed suit with a competitor in A330 in 1992. For a layman both the designs will look same. Only an Avgeek will tell the differences. Here no one is fighting over the design issues.
@Tom, sure....if you want to nail innovation down to the color of the plastic, then yes, the Shanghai fake market in the basement of Science Museum in Pudong was indeed a center of innovation, as the design came in so many different colors that you can imagine. But, again, that hanging-on-the-ear design, truly wireless earbuds, case doubling-as-charger, controls by tapping,....what brand came to mind? Really really trying hard NOT to defend Apple here and you...
@Tom, sure....if you want to nail innovation down to the color of the plastic, then yes, the Shanghai fake market in the basement of Science Museum in Pudong was indeed a center of innovation, as the design came in so many different colors that you can imagine. But, again, that hanging-on-the-ear design, truly wireless earbuds, case doubling-as-charger, controls by tapping,....what brand came to mind? Really really trying hard NOT to defend Apple here and you are not making it easy.
I'm not sure if CBP realizes as to how much of an embarrassing incident this is to the United States. come on! if you wanna bust fake AirPods, just go on amazon and catch the sellers.
@Shangster11 - It really is amazing that no one had ever had the thought to make earbuds White before Apple invented the process of making plastic white. This position is insane.
This likely "protects" Apple but for the average person not really.
Just ask any regular consumers, when you look at the earbuds, what brand comes to mind? If the responses are predominantly one particular brand....well, then, you got your answer.
I do like OnePlus (got a OnePlus 5T) but it is quite clear who invented the concept and design of this type of earbud.
And Lucky...stop judging on a subject where you are really not an expert in.
OnePlus is a popular personal electronics brand from Asia - frankly I prefer my current OnePlus over the iPhones and Galaxies that I have owned.
When I first read the article headline, my immediate reaction was: yep - that's about right for the CBP. What a f*cking disgrace of an organization.
I think NYPD should seize counterfeit BigMacs at BurgerKings. Total rip off!!!
CBP...now moonlighting as Apples IP paralegals..
CBP isn’t backing down that these products violate Apple’s trademark.
I have had two One Plus phone over the past year. They are great overall, and do things Samsung and Apple should be doing. For compatibility reasons I will be switching back to Apple :-(
If you want a cheaper but great alternative to Apple and Samsung, I recommend.
Counterfeits are imitations trying to deceive consumers into thinking they're something which they're not. OnePlus is not deceiving anyone into thinking those are Apple earbuds.
CBP is doubling down on stupidity.
That people pay $199 for these things is the embarassement!!
The Keystone Cops had children. They work at the CBP.
Good to see a government agency that can generate a press release to brag faster than anything less important.
I feel so much safer now
The US government using tax dollars from ordinary consumers to protect Apple from Chinese competition, and depriving those same consumers of the ability to choose the headphones they find to be the best value for money. What would we ever do without the CBP?!?
Okaaay that's not the emoticon I used, some compatibility trouble there..
I actually left my Samsung Galaxy for a OnePlus and now that it's once again time to upgrade, I'm not being able to pick the Galaxy S20 over the OnePlus 8 Pro, despite the Galaxy being a bit cheaper
Never Settle♂️
“Buds so good, even CBP had to seize them to check them out”
I would be the last one to criticise you Lucky, but this has nothing to do with travel or points.
It would be like me selling BMWs in a restaurant.
I get COVID had killed most travel, but customs and excise really hasn’t got any relevance to this blog.
I’m sorry, I know you get enough criticism but I do think I need to give constructive criticism in this case. It’s your blog, so feel free to do as you wish, but this time I had to speak.
OnePlus is not some random knockoff brand. They make high quality products (although personally, I was not a fan of their phone).
This is the corporate version of the guy celebrating the bike race too early meanwhile 2nd place guy comes buzzing past him right at the finish line.
“ I’m not sure who should be more embarrassed here — the CBP for putting out a press release claiming that counterfeit Apple AirPods were seized, or OnePlus USA, for creating a product that looks so similar to Apple AirPods that 2,000 of them were seized by CBP…”
CBP.