Sad to say the CBP is right here: A product that looks too much like another can be a "counterfeit" under the Lanham Act even if the packaging makes it clear these products don't come from Apple.
The courts have ruled that product shapes can be registered as trademarks. Once so registered, copycat designs can qualify as "counterfeits"--again, even if the labeling is clear and non-deceptive.
This is yet another reason why product shapes shouldn't be registrable as trademarks.
And if you don't like CBP enforcement of trademarks, you'll hate this proposal: patentlyo.com/patent/2020/01…
To be clear, I mean CBP is right that these could potentially be "counterfeits," despite the packaging.
Without seeing the registration(s) at issue, I won't comment on the merits (i.e., whether these products are, in fact, counterfeits).
Okay, it looks like these may be the registrations at issue:
tsdr.uspto.gov/#caseNumber=88…
tsdr.uspto.gov/#caseNumber=88…
If that's right, and from the photos in the @verge stories, I don't think the OnePlus Buds are counterfeits.
For more on CBP enforcement of trademark infringement & counterfeiting, I recommend this article by @LCGrinvald: papers.ssrn.com/sol3/papers.cf…
Anyway, what I'd really like to know about this seizure is: Did Apple file an allegation against the OnePlus Buds with the CBP? (See generally cbp.gov/document/publi…) Or did the CBP seize them on its own initiative?
Share this Scrolly Tale with your friends.
A Scrolly Tale is a new way to read Twitter threads with a more visually immersive experience.
Discover more beautiful Scrolly Tales like this.