Interesting thing this. On the one hand they are clearly inspired (or even copied) from Apple’s Airpods indeed, but on the other hand they have their own brand and packaging and do not pretend to be Apple Airpods. Strictly speaking, not a fake, but your own product.
Counterfeiting is actually unfortunate here in the article. These earpieces were not confiscated because they are counterfeit items (in which you indeed pretend to sell Apple Airpods), but because it infringes Apple’s trademark right. That trademark law protects – in this case – the shape of the Apple Airpods. If you look at the photo with the article, you can see that the ears of OnePlus are very similar to those of Apple. This is usually not allowed if a valid trademark right exists.
Not quite sure what the influence of Customs could be on this, but it seems to me that they should still admit their mistake and allow the products, as long as Apple does not contest this itself? After all, are they the only ones who can decide whether the trademark has been infringed or not? As long as Apple doesn’t contest it, it doesn’t seem like a problem to me. Is this legally / legally different?
So they have not made a mistake, because it is not about counterfeiting. In addition, a few observations from practice. Customs has the duty to protect these types of rights. After all, when the products are in the country, it is much more difficult for the right holder to take action against them. This type of enforcement is therefore often based on a request from the entitled party.
In addition, I am in the legal world and I dare to bet that Apple only applauds this. They will not (voluntarily) help the competition and condone this. Companies like that are already getting in each other’s hair for less strong things, so I certainly don’t expect Apple to admit here.
EDIT: By the way, I see that they call themselves ‘counterfeit’ in their press release. A lot of the confusion will come from there and, frankly, I don’t think that’s right. If they had been correct, it should have said ‘infringing’, but hey …
[Reactie gewijzigd door Baps op 15 september 2020 10:24]