US Customs and Border Protection racked up a win late last month, according to its most recent press release. On August 31st, the agency seized 2,000 counterfeit "Apple Airpod Earbuds" destined for Nevada at New York's JFK International Airport. The only problem: those are OnePlus Buds, as you can see in the poor images DHS provided.
The press release proudly proclaimed that those fake AirPods had a street value of $398,000. Of course, we know what they actually have is about $158,000 in OnePlus merchandise (at $79 a pop). The posting doesn't include any more information—for example, why did someone think these were counterfeit Apple products? Yes, lots of things look like AirPods, but there are no Apple logos or branding.
According to CBP, the shipment originated in Hong Kong before reaching New York, where it was seized. I imagine plenty of authentic gadgets come into the US from Hong Kong, so that doesn't seem particularly relevant. The bulk of the release recaps the large number of busts CBP makes every year. Hopefully, this incident is not representative of CBP's accuracy.
Hey, give those back! 🙃
— OnePlus USA (@OnePlus_USA) September 14, 2020
CBP doubling down
Upon questioning, the CBP now claims that it didn't make a mistake at all and OnePlus Buds violate Apple's trade dress. That is, at best, a dubious position—Apple has not attempted to go after OnePlus or other manufacturers for using AirPod-like shapes. The full statement is below, and we've got a breakdown of this development here.
Upon examining the shipment in question, a CBP Import Specialist determined that the subject earbuds appeared to violate Apple’s configuration trademark. Apple has configuration trademarks on their brand of earbuds, and has recorded those trademarks with CBP. Based on that determination, CBP Officers at JFK Airport have seized the shipment under 19 USC 1526 (e). CBP’s seizure of the earbuds in question is unrelated to the images or language on the box. A company does not have to put an “Apple” wordmark or design on their products to violate these trademarks. The importer will have many opportunities through the adjudication process to provide evidence that their product does not violate the relevant recorded trademarks.