> This is not Apple "exploiting" the legal framework but more optimizing how they use their capital to make the best of it.
Using a legal framework designed to stop counterfeiting to stop shipments of things that aren't counterfeits (or even illegal at all) is absolutely exploiting it.
> for which counterfeits and aftermarket replacements are very much desired.
Here’s a thought experiment for why, I think, it’s actually very hard to make the case against CBP’s behavior.
Imagine if I come into the possession of 80 severely damaged Chanel handbags for super cheap. They’re basically shedded, but they have intact branding.
I go to China and get 80 replicas. Then, I carefully cut the genuine logo, off the ruined handbags, and sew it onto the replicas.
Have I committed counterfeiting? Under the law, 100% indisputably; despite using a genuine logo from a genuine handbag. Despite me legally purchasing both items, the combination is, in a sense, illegal. I would risk up to a decade in prison if I sold that combination.
Now replace handbag with iPhone screen. The distinctions become extremely difficult, and not the CBP’s job to figure out. Surgical legal changes are required.
We don't need a thought experiment! We already have an expert legal opinion!
> “Assuming that: (1) the cable bearing the Apple mark is a genuine Apple product, (2) the cable used on these screens is the same as the one Apple uses in the U.S., and (3) the importer/seller clearly communicates that the screens are a non-Apple aftermarket product, then Apple’s case for treating these as ‘counterfeit’ goods is very weak,” Perzanowski said in an email. “Refurbished or repaired products are generally permissible under trademark law’s first sale doctrine, so long as they are clearly labeled as such.”
If they thought it would work they would pursue it in court. They have not. They are instead getting an unaccountable government agency to enforce their will extrajudicially i.e. the whole point of the article.
The legal costs to recover a single shipment are not worth the value of the shipment, and they also don't prevent the border police from siezing the next shipment.
Businesses want to make money, not tilt at windmills.
That's not like what is happening here. In your hypothetical situation, you are selling bags featuring the Chanel brand.
In the first situation from the article, the products seized by the CBP only included Apple branding on internal components which were created by Apple and not modified.
In the second situation from the article, the products did not feature any Apple branding at all. They were clearly branded as OnePlus devices, which they were.
In the first situation from the article, it explicitly states briefly that they are “hybrid” parts:
> The screens that were seized are “hybrid” parts: the screens are third-party, but use a few original Apple parts like a flex cable that connects the screen to the phone. That invisible, internal part is marked with an Apple logo, which is enough to let the CBP seize the entire shipment.
Which brings up my Chanel handbag analogy of an Apple-branded flex cable, “sewn” onto a part they did not make; to create what CBP may reasonably interpret as a counterfeit product consistent with how “hybrids” in other categories are treated.
As for OnePlus; that one never made any sense and probably embarrassed Apple too because… it’s not like Walmart has had any problem selling AirPods knockoffs.
As explaine by the article, counterfeiting involves pretending to be a product it's not. For example, if you sell your hypothetical channel bags as genuine channel bags instead of as generic, no-brand bags, then that would be counterfeiting because you're pretending they're something that it's not. Using genuine apple parts in third-party screens is more comparable to putting channel bag straps (which, yes, have the channel logo on them) into fake bags and selling them as generic, non-channel bags.
Similarly, if you don't label the third party screen as "genuine apple", you're not infringing copyright.
The courts are our usual tool in sussing out this kind of nuance. It's kind of their raison d'être. We haven't gotten totally lost in the weeds yet with, say, automobiles. This "hybrid part" labeling because we don't understand a smartphone as intuitively as a car can make it seem like these are terribly novel concepts but they just aren't.
If Chanel brought their case, they would win. If Apple brought theirs, they would lose.
But it appears they don't have to bring a case at all. Your thought experiment won't be considered. Lucky them.
I take "hybrid" to mean that the screens included a mix of Apple and third-party components. That seems to be consistent with the article's description. What's wrong with that?
The cables are genuine Apple cables. They have the Apple brand on them (inside the product where they can't even be seen) because they were legitimately made by Apple. But the screen as a whole is not being passed off as an Apple product - unlike your Chanel bags.
> As for OnePlus; that one never made any sense and probably embarrassed Apple too because… it’s not like Walmart has had any problem selling AirPods knockoffs.
As it was one shipment rather than the product line, and since CBP confirmed that they had not made a mistake, I suspect something was up with that shipment in particular.
> In the first situation from the article, the products seized by the CBP only included Apple branding on internal components which were created by Apple and not modified.
But they aren't "internal components", because they aren't inside anything. There were Apple logos on a display assembly which was not manufactured for Apple and which, I suspect, were not otherwise labelled as being a non-genuine part.
Under that suspicion - at import, there would be no indication these parts weren't meant to be sold to other third party repair shops as genuine Apple display assemblies.
Since Jessa Jones had two shipments seized back in 2018 there hasn't been any news that I know of updating on an appeal or lawsuit, or of any other seizures on her imports.
I feel like this isn't supported by the article. The seized shipments are of things that are legitimate to resell and other companies that didn't violate trademarks at all. The whole complaint is really "Apple is avoiding having this illegal behavior challenged in court". (with a healthy dose of Border Patrol has too much power and too little oversight)
I love this post that acknowledges that Apple bribes cops with guns to get a leg up on competition because it highlights the importance of the fact that “paying cops with guns to seize competitors products” is a detail, which makes the fact immaterial. Details literally do not matter and cannot be illegal, this is illustrated by the fact that no person or organization has been convicted off petty “details”
For those who had to look it up, here's the applicable definition of payola:
From Dictionary.com:
Payola - a secret or private payment in return for the promotion of a product, service, etc., through the abuse of one's position, influence, or facilities. [https://www.dictionary.com/browse/payola]
From Wiktionary:
Payola - a bribe given in exchange for a favor, such as one given in exchange for the promotion of goods or services (originally one given to a disk jockey to play a record).
[https://en.wiktionary.org/wiki/payola]
How is Apple getting the CBP to seize products legally produced by competitors with no Apple branding or IP infringement anything but an "exploit"?
We're not talking about counterfeits here. We're talking about products from recognizable competitors like OnePlus.
And why should Apple get to claim "counterfeit" for products just because they internally include components which were produced by Apple? The products are not passing themselves off as being made by Apple.
None of this aligns with actual trademark law in the US. Whether or not payola is involved, the CBP is clearly abusing their power and Apple is taking advantage of it to unfairly harm competitors.
