CBP Seized OnePlus Buds as ‘Counterfeit’ AirPods. Now It's Doubling Down

It was a big moment for US Customs and Border Patrol. On August 31, the agency had intercepted a shipment of what it determined to be 2,000 counterfeit Apple AirPods at a JFK International Airport cargo facility, en route from Hong Kong to Nevada. The CBP crowed about its haul on Sunday, saying that the merchandise would have been valued at $398,000 "had it been genuine." There was only one problem. The merchandise was genuine: They were OnePlus Buds, and clearly labeled as such. They cost $80 a pop.
CBP's tweet was met with swift and robust derision from those familiar with OnePlus, a popular China-based purveyor of quality budget smartphones and other consumer tech. Even the OnePlus US Twitter account offered a cheeky reply: “Hey, give those back! 🙃.” Everyone had a good laugh at the presumed mix-up, except for CBP, which on Monday made clear that it is absolutely not backing down.“Upon examining the shipment in question, a CBP Import Specialist determined that the subject earbuds appeared to violate Apple’s configuration trademark,” the agency said in a statement shared with WIRED. “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.”
Apple did not respond to a request for comment. OnePlus declined to comment.CBP helps enforce the intellectual property rights of US companies by preventing goods suspected of infringing on those trademarks from entering the country. OnePlus Buds certainly look similar to Apple’s ubiquitous cotton swab ear-hangers, but cheaper devices seemingly inspired by Cupertino’s designs are every bit as endemic to the tech industry as Haus deliveries and frightfully inflated valuations. Surely there’s a distinction between outright counterfeit App1e AirPoods and a company selling its products under its own name and branding.
Well, not as far as CBP is concerned. “Their analysis is supposed to 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,” says Richard McKenna, a partner at Foley & Lardner LLP who focuses on intellectual property law. “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.”