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If it quacks like a duck, in other words, CBP is within its right to call it a fake duck. And the agency is familiar with Apple’s fakes; They are so prevalent that Apple participates in the agency’s Donation Acceptance Program, in which private companies donate relevant resources to help CBP detect counterfeits. According to a 2019 Office of Government Accountability report, Apple is providing digital microscopes, lighting wire detectors, and iPhone power cords to help the agency authenticate products. Procter and Gamble, Otter, Cisco, and other companies also participate in the program.
McKenna says the fact that the OnePlus Buds are listed at just over half the cost of the AirPods may have registered as another hit on CBP’s limited checklist. Selling something that looks so similar for a lot less is likely to set off alarms.
What the CBP seizure doesn’t mean, however, is that OnePlus Buds are suddenly banned in the US (You can still buy them right now from most online electronics retailers.) The final word belongs to the courts, not CBP, and the legal system takes into account many more factors when considering trademark infringement. “The legal test for trademark infringement is the risk of confusion,” says McKenna. This is where clear branding comes in; someone would have to think that you were buying an Apple product even though OnePlus is in the box.
So what happens next? CBP will stop 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 ultimately decide whether Apple’s trademark has been infringed, which CBP itself made sure to take into account. “The importer will have many opportunities through the adjudication process to provide evidence that its product does not violate the relevant trademarks,” the agency said in its statement.
Copycats emerge in all industries; This year’s runway is next year’s Target sales shelf. For CBP to clamp down on an established company like OnePlus is an unusual step. Lately, the US government has been notably 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 one will be interesting to see what happens. “
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