In other words, if it chirps like a duck, CBP is within its rights to call it a counterfeit duck. And the agency is familiar with Apple counterfeits; they are so widespread that Apple is participating in the agency’s Donations Acceptance Program, in which private companies donate relevant resources to help CBP find fake bugs. According to a 2019 report from the Government Accountability Office, Apple is contributing digital microscopes, light cable detectors and iPhone power cables to help the agency approve products. Procter and Gamble, Otter, Cisco and other companies are also participating in the program.
McKenna says the fact that OnePlus Buds is listed at just over half the cost of AirPods may have been registered as yet another strike on CBP̵
What the CBP seizure does not mean, however, is that OnePlus Buds is suddenly banned in the United States. (You can still buy them right now at most online electronics retailers.) The last word on this belongs to the courts, not the CBP, and the legal system takes into account far more factors when considering trademark infringement. “The legal test for trademark infringement is the likelihood of confusion,” says McKenna. This is where the clear branding comes into play; someone would think they bought an Apple product even though OnePlus is on the box.
So what happens next? CBP withholds OnePlus Buds for up to 30 days. Once notified, OnePlus has the same time to file a denial. And presumably, the courts will ultimately decide whether Apple’s trademark has been infringed, which CBP itself made sure to note. “The importer will have many opportunities through the appraisal process to provide evidence that their product does not infringe the relevant registered trademarks,” the agency said in its statement.
Imitators are popping up in every industry; this year’s runway is next year’s goal stand. For CBP to take dramatic action against an established company like OnePlus is an unusual step. The late US government has been noticeably more hostile to Chinese companies trying to do business in the US, which is reflected in TikTok’s still uncertain fate among other recent actions. Given that China has been a major source of counterfeit and pirated goods for years, it is still unclear, according to CBP, 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. “I do not know how this particular shipment came into that categorization. But this will be interesting to see what happens. ”
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