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.
What the CBP seizure does not mean, though, is that OnePlus Buds are suddenly verboten in the US. (You can still buy them right now at most online electronics retailers.) The final word on that belongs to the courts, not to CBP, and the legal system takes into account far more factors when considering trademark infringement. “The legal test for infringement of a trademark is likelihood of confusion,” says McKenna. Which is where the clear branding comes into play; someone would have to think they were buying an Apple product even though OnePlus is on the box.
So what happens next? CBP will detain the OnePlus Buds for up to 30 days. OnePlus, once notified, has the same amount of time to file a denial. And presumably the courts will eventually decide if Apple’s trademark has been infringed upon, which CBP itself made sure to note. “The importer will have many opportunities through the adjudication process to provide evidence that their product does not violate the relevant recorded trademarks,” the agency said in its statement.
Imitators crop up in every industry; this year’s runway is next year’s Target sales rack. For CBP to take dramatic action against an established company like OnePlus is an unusual step. The US government of late has been noticeably more hostile towards Chinese companies trying to do business in the US, as reflected in the still uncertain fate of TikTok among other recent actions. Still, given that China has been a major source of counterfeit and pirated goods for years, according to CBP, it’s unclear whether the OnePlus case is part of a broader political escalation.
“The vast majority of product seizures are pure counterfeits and everyone knows it,” says McKenna. “How this particular shipment got into that categorization, I don’t know. But this will be an interesting one to see what happens.”
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