Hacker News Reader

Comment by MrStonedOne | Hacker News Reader

The legal definition of counterfeit product (as realized by CBP's jurisdiction) boils down to:

Bares a Registered Trademark and does not have a signed letter of authenticity by the trademark holder authorizing its import.

That is super broad and covers a lot of things most people would think to be false positives like legit items sold second hand.

But even that doesn't cover thinking OnePlus Buds are AirPods.

View on HN

There's this older Sparkfun story. They had their multimeters seized for being yellow:

https://www.sparkfun.com/news/1428

Trademarks are not limited to text, the gray and yellow color scheme is a Registered Trademark by Fluke [0]. Nowadays 2/3 of the cheap meters use this color scheme, at this stage this trademark is effectively dead, most people will not connect this color scheme to Fluke. I didn't even know it came from Fluke (neither did SparkFun I guess), until this incident.

But unless Apple registered something similar for shape or the color of the AirPods, or somehow patented its design, it's not an infringement, and the CBP cannot seize them.

Now the question is, how much does it cost to sue the CBP...

[0] https://tsdr.uspto.gov/#caseNumber=75934005&caseType=SERIAL_...

> Trademarks are not limited to text, the gray and yellow color scheme is a Registered Trademark by Fluke

Absolutely, trademarks can be made in a wider variety of things, but in this particular case...

> Description of Mark: The mark consists of the colors dark gray and yellow as applied to the goods. The dotted outline of the goods is intended to show the position of the mark and is not a part of the mark.

> Color(s) Claimed: Color is not claimed as a feature of the mark.

Interpreting whether or not the gray and yellow color scheme is in fact a registered trademark seems... More difficult than just point to a form.

> But unless Apple registered something similar for shape or the color of the AirPods, or somehow patented its design, it's not an infringement, and the CBP cannot seize them.

Apple most certainly did get design patents for them. First relevant search result:

https://www.patentlyapple.com/patently-apple/2017/09/apple-w...

Not debating that patents are good things, especially in this case, but it is pretty obvious to me (as in, not a patent attorney) that they heavily incorporated Apple’s design IP.

There are a couple trademarks on the AirPods shape, but neither seem to be granted: https://uspto.report/TM/88402652 https://uspto.report/TM/88357707

There's more than just trademark. I used to work with some attorneys formerly at the US International Trade Commission. From what they told me, most goods that they had seized at the border were caught in "design patent" cases. It was interesting to me how prominent that area of law was in practice, given that we never covered it in my IP classes.

Apple has an internal wine and cheese event from time-to-time for staff dedicated exclusively to design patents.

I was also surprised that was a big thing initially, especially when you know where a lot of designs were inspired from. :)

https://www.fastcompany.com/3016910/apples-inspiration-for-t...

https://www.cnet.com/news/time-is-money-apple-pays-21m-for-c...

Can't even import items without permission from the manufacturer?

Funny how all the free trade stuff never applies to consumers.

Isn't the fact that nobody involved in this seizure could tell that they weren't AirPods counterfeits a form of evidence that OnePlus Buds may in some circumstance be AirPods counterfeits?

Not if oneplus has any protections for their design.

But ianal

Maybe it's evidence that AirPods are counterfeit OnePlus Buds.

If you want your customers to be assured of getting the genuine article you should put an actual trademark on your product. Apple shouldn't get to claim that anything with a minimalist design is a counterfeit Apple product.

They look exactly like AirPods, though, which is a design Apple created, as an evolution of EarPods. When EarPods were released, they looked unlike any earbuds ever released, despite the fact that ear buds as a product have existed for 30 years or more. If it were as simple as “minimalist design” any of the 100+ ear bud manufacturers of the past 30 years could have designed something similar.

Apple never gets enough credit for their design work in the general tech community. Lots of design work can look “obvious” or minimalist in hindsight.

Despite the resemblance to the "idiot in a hurry test" not really any more than the police mistaking flour for cocaine means that grain mills are massive criminal enterprises that through some sinister alchemy have managed to transmute wheat to cocaine.

Reply on news.ycombinator.com