McKenna Quoted in Wired About Recent Government Seizure of OnePlus Buds as Counterfeits

Partner Rick McKenna was quoted in the Wired article, “CBP Seized OnePlus Buds as ‘Counterfeit’ AirPods. Now It’s Doubling Down,” about the recent U.S. Customs and Border Patrol seizure of of thousands of ear buds which it claimed were counterfeit AirPods. The merchandise was genuine, however. They were “OnePlus Buds,” and according to Wired were clearly labeled.

The government claimed that the OnePlus Buds appeared to violate Apple’s configuration trademark for it’s AirPods and was helping to enforce the intellectual property rights of US companies by preventing goods suspected of infringing on those trademarks from entering the country. While the OnePlus Buds look similar to Apple’s Air Pods, does the resemblance amount to conterfeit? McKenna told Wired that Customs and Border Patrol’s analysis of counterfeit products should be “fairly methodical, where basically they look at the copy of whatever has been registered with the trademark office and visually compare that with what has been shipped in the container,” he said. “The branding that appears on the allegedly infringing product, that’s really not for Customs to worry about. They’re just looking at whether the product configuration itself looks like the product configuration that is registered as a trademark.”

McKenna said the fact that OnePlus Buds are listed at a little over half the cost of AirPods may have registered as another strike on the CBP’s limited checklist. Selling something that looks so similar for so much less is likely to set off alarms.

Ultimately it’s for the courts, not Customs and Border Patrol, to decide whether the items are counterfeit. The legal system takes into account far more factors when considering trademark infringement. “The legal test for infringement of a trademark is likelihood of confusion,” McKenna said, and the clear branding will likely be a factor: Someone would have to think they were buying an Apple product even though OnePlus is on the box.