If it croaks like a duck, in other words, CBP has the right to call it a fake duck. And the agency is familiar with counterfeit Apple. They are so widespread that Apple participates in the agency’s donation acceptance program, where private companies donate relevant resources to help CBP identify counterfeits. Apple is supplying digital microscopes, lighting cable detectors, and iPhone power cords to help the agency authenticate products, according to a 2019 report by the Government Accountability Office. Procter and Gamble, Otter, Cisco, and other companies also participate in the program.
According to McKenna, the fact that OnePlus Buds are listed at just over half the cost of AirPods is possibly another strike on the CBP̵
What the CBP seizure doesn’t mean, however, is that OnePlus Buds are suddenly banned in the US. (You can still buy them from most online electronics stores right now.) The final say on this belongs to the courts, not CBP, and the legal system takes far more factors into account when it comes to trademark infringement. “The legal test for trademark infringement is confusion,” says McKenna. This is where clear branding comes into play; Someone would think they were buying an Apple product even though OnePlus is on the box.
What happens next? CBP will keep the OnePlus Buds for up to 30 days. Once notified, OnePlus has the same time to submit a rejection. And presumably at some point the courts will decide whether Apple’s trademark has been infringed, which CBP itself has ensured. “Through the decision-making process, the importer will have many options to provide evidence that his product does not violate the relevant registered trademarks,” said the agency in its statement.
Copycats appear in every industry; This year’s runway is the Target retail shelf for next year. It’s an unusual move for CBP to take dramatic action against an established company like OnePlus. The US government has recently been noticeably more hostile to Chinese companies trying to do business in the US, which was reflected in the still uncertain fate of TikTok in recent times, among other things. Given that China has been a major source of counterfeit and pirated goods for years, according to CBP, it is unclear whether the OnePlus case is part of a wider political escalation.
“The vast majority of product seizures are pure counterfeits and everyone knows it,” says McKenna. “I don’t know how this particular show got this categorization. But it will be interesting to see what happens. “
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