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Apple's Trademark Exploit (giovanh.com)
294 points by lr0 7 months ago | hide | past | favorite | 133 comments



Huh. What happened with the lot of 2000 seized OnePlus Buds? ( https://www.theverge.com/2020/9/14/21436760/us-customs-state... )

Did the company just write off that shipment and keep selling them?


I wondered about that. CBP affirmed they didn't make a mistake and then you just never heard about it again.


I had a pair of white Denon Wireless Earbuds that I tried to sell on Facebook Marketplace, still in shrink and with my own photos. They were kicked off as counterfeit items, presumably because I described them as knockoff Air Pods and that triggered some filter. I wonder if Apple is also coaching classified ad sides with the same trademark messaging they're giving CBP?


'I described them as knockoff Air Pods'

If Facebook didn't immediately block sales of items self-described as knockoff <whatever brand>, they'd be (rightly) criticised for allowing the sale of counterfeit goods


Is it a counterfeit if it's advertised as such? The harm of counterfeits is only when they're being passed off as the real thing. If the buyer is aware that it's counterfeit what's the issue?


Are you asking if it's counterfeit if you say it's counterfeit? If it weren't, and you said it was, wouldn't you be lying?


That you’re cutting into the sales of the legitimate item and the buyer could easily sell on the counterfeit to an unwitting buyer. The protection does not solely exist for the benefit of consumers.


Why's that? For example, wouldn't you describe any rotomolded cooler as a knockoff Yeti? To me, that doesn't seem to comment on the legit vs. counterfeit nature of the cooler, it just anchors the viewer's expectation.

Is there some special protection (in the USA) given to describing something as a "knockoff" versus "similar to"?


“Apple is being asked why they had the police raid someone’s business and steal their merchandise, and their response is a recitation of their business model: an incredible admission of how they view law enforcement as a simple weapon for Apple to use use to enforce their preferences.”

I ask myself daily “What is law enforcement if not a simple weapon to be used to enforce my personal preferences?”


This is why I buy neither Apple nor Nintendo parts brand new wherever I can. I'd rather pay the last owner than have it go into the coffers of increasingly evil corporations.

They may be right in some cases, i.e. genuine fraud, but not when abusing law to help maintain a near monopoly.

Microsoft got done for maintaining a monopoly and browser walled garden at a time when it was the biggest company in the world.

What has changed with Apple?


One reason some people like buying Apple products new is they have a reasonable resale value. So actually buying used still helps Apple by maintaining the resale market.


I hate IP in its current forms yet I have trouble getting particularly outraged by this article.

If we have laws protecting IP, why is it wrong to enforce them? Why is it wrong to train LE to recognize counterfeits?

Granted the article did discuss some shady stuff like CBP seizing stuff and auctioning it off; I think that civil forfeiture and other such seizures are unconstitutional takings but the Supreme Court doesn’t agree.

Also Apple has done shady stuff like sending their security people to private homes to track down leaked prototypes [1].

But my bottom line is let’s get rid of bad IP law, not complain about the side effects of enforcement.

[1] https://www.cultofmac.com/112054/san-francisco-police-admits...


I think it’s massively problematic that a few select mega corporations with deep pockets get to enforce what products are allowed to be brought into the US with no due process. CBP should train to learn what products to seize, but that training shouldn’t be taught by a self-interested corporation. It increases the barrier to entry of new competitors as you must bribe the CBP to have your trademarks enforced, and the CBP ends up with an unfair focus on one company’s products.


I agree; let’s change the laws!


This is not a case of IP law being enforced. This is a case of the CBP using their power to punish Apple's competitors, despite no actual violations having occurred.


I have seen arguments that even word ip is bad as it conditions you to believe ideas are property, I think i may agree.

We should definitely get rid of bad enforcement immediately, enforcement is like 90% of a laws effect.


The term “intellectual property” is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.

Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.

— <https://www.gnu.org/philosophy/not-ipr.html>


I think Cory Doctorow has an interesting counterpoint which is worth considering:

> When you look at how “IP” is used by firms, a very precise – albeit colloquial – meaning emerges:

> “IP is any law that I can invoke that allows me to control the conduct of my competitors, critics, and customers.”

> That is, in a world of uncertainty, where other people’s unpredictability can erode your profits, mire you in scandal, or even tank your business, “IP” is a means of forcing other people to arrange their affairs to suit your needs, even if that undermines their own needs.

-- https://locusmag.com/2020/09/cory-doctorow-ip/


The problem is that CBP is enforcing Apple’s desire to prevent people from importing used Apple products (or new items that compete with what Apple sells). Neither activity is actually illegal, but CBP has vast powers that are not constrained by the normal domestic legal process and Apple had found a way to maximally abuse CBP’s powers


Remember that anti-spam company that made you embed a haiku they trademarked and if some spammer used it, they go after them? What a weird idea. They must have gotten millions for such a ridiculous idea, as their logo was emblazoned on a large office building they most likely occupied right off the highway.


Isn’t this describing people having “grey market” or worse products confiscated?

If the Apple logo is on a part then the manufacturer likely made that part for Apple under some agreement and the manufacturer is not permitted to make more of those exact pieces for other buyers.

Also if those pieces were made for Apple and didn’t pass QA, then the manufacturer can’t just sell them. They have agreements to destroy them.

If the Apple logo is on a thing then it’s a counterfeit someone is trying to pass off as real or an official part that “fell off a truck” or didn’t pass QA and should have been recycled or something…

If I legitimately paid a manufacturer for a compatible part to be made, I’d expect no logo on it


> Isn’t this describing people having “grey market” or worse products confiscated?

No. The products in question were assembled using a combination of standard hardware components and genuine OEM parts salvaged from broken Apple devices.

Since Apple goes to great lengths to prevent third parties from accessing components used in Apple devices, salvaging OEM parts from busted machines is often the only legitimate way to produce replacement parts that are compatible with Apple products.

> If the Apple logo is on a thing then it’s a counterfeit someone is trying to pass off as real or an official part

None of the products in the examples from this article were branded with Apple logos or advertised as being genuine Apple products. Internal components (e.g. cables) within the products were found to have Apple branding because the parts were salvaged from genuine Apple devices.

The Apple brand was never used to identify anything that wasn't a genuine, OEM component - ergo not counterfeit.


> Internal components (e.g. cables) within the products were found to have Apple branding because the parts were salvaged from genuine Apple devices.

Source?

It seems far more likely those parts came from the original factory selling original parts under the table for whatever reasons, or are actually counterfeited with just the logo stamped on them afterwards. Salvaging parts from used devices at such scales would require a pretty extensive operation.


So guilty until proven innocent, then?

This is exactly why the title calls Apple's practice an "exploit". Apple recognizes that CBP does not follow due process and they take advantage of that by slapping their label on every last little, insignificant component - including stuff the customer will never even see. It probably helps catch counterfeits, but it has the added benefit of significantly disrupting legitimate competition.

> Salvaging parts from used devices at such scales would require a pretty extensive operation.

It'd be a lot easier than reverse-engineering every Apple component and manufacturing it yourself. What else is a legitimate replacement part producer supposed to do?


What does this have to do with providing a source?

You are the one who wrote the, not trivially obvious, claim.


If by "source" you want proof that the componenets with Apple branding are genuine parts salvaged from broken Apple products, I obviously can't do that.

Here's what the article says:

> The parts aren’t being seized because they’re counterfeit. In fact, they’re demonstrably not counterfeit: the only reason an Apple logo is on a piece of a “third-party” component is because that piece is original OEM Apple hardware being legally re-sold:

> “The parts I buy have an original flex on it because that’s what’s best for my consumers,” [repair shop owner Jessa Jones] said. “It’s difficult and pointless to erase the existing Apple logo that’s printed on a tiny piece of flex. There’s no customer-facing Apple logo, no logo anywhere on the glass. It’s smaller than a grain of rice. We have never said online, in person, or anywhere else that these are Apple-certified screens.”

That aligns with claims I've heard from Louis Rossmann about the parts he uses.

https://www.reddit.com/r/apple/comments/clgnmh/comment/evx65...

https://www.youtube.com/watch?v=47-LNbb2vR8

I can't prove that any of these claims are true by Jessa, Louis, or the author of this article. But it shouldn't matter. People are supposed to be presumed innocent until proven guilty, not the other way around.


The default assumption of innocence is for the default case, i.e. where nothing notable happens at all.

Beyond that, there cannot be such a presumption, enforcement action in many scenarios need to be taken well before the timeframe necessary for a formal court judgement to be delivered.

e.g. Airport baggage screening, where even if you mistakenly pick up someone else’s lookalike bag full of prohibited substances, you could still suffer quite severe consequences


Your claim is just as not trivially obvious. So, source?

In reality, nobody knows why Apple is doing it except the people who made the decisions nor would it really be possible to trace the parts, but it’s far more likely that it comes from the many devices that can be salvaged for parts than it coming from some black market operation coming from the factory.


My claim of what?

If you meant my previous comment, I clearly phrased it as my own person opinion?


In no way shape or form is that phrased as your own personal opinion. You asked the parent commenter for a source and then parroted an alternative theory as what actually happened.

Considering you were so adamant on asking a source for the other person’s theory, and were so sure of your own, that you must have proof of it, right?


To be frank, your opinion of another HN user's comments doesn't outweigh anyone else's opinion. If your unsure about this point, perhaps review the HN rules?

If it was indeed as you say, and that the large majority of passing readers indeed perceived it as such, then the previous comment would have been downvoted into 'dead' status a while ago.

Since it hasn't, then that's proof enough.


Look in the mirror; your entire comment applies to you.

Linking the lack of downvotes to people's opinions of said comment is a reach at best. Downvoting here doesn’t happen nearly as often or for the reasons you think they do. This isn’t Reddit. Things don’t just get downvoted because people disagree with your opinion.


Okay so you agree that both our opinions in this comment chain aren't likely to be confused with statements of fact?

Then there's nothing in dispute?


That’s not what I said at all but is certainly a much easier goalpost to defend.

You still haven’t provided a source for that claim of yours. If you consider the other comment as fact to the point where you corrected it, then yours is just as much.

Also, next time, maybe keep track of the people you are replying to.


What are you confused about now?


Maybe you should take a look at those guidelines yourself, bud.


I have? Your also free to opine that I don't know the HN 'guidelines', but it's unlikely that will lead to anything productive.


The source is the article? That’s rather one of the points of the article.


Then can you link or quote the specific parts of the article that back up the claim?

Because I don’t see it.


I responded to you a couple days ago with the relevant quotes from the article.


Read the part under "Versus Competing Accessories", there's no Apple logo involved, there's nothing grey about a manufacturer making their own goods. Their alleged crime is that it's an earbud, with a shape that doesn't even look like Apple's products: https://www.oneplus.com/us/product/oneplus-buds


The author appears to accidentally make the assumption that in order for it to be a counterfeit part, it must be 100% counterfeit.

CBP doesn’t work that way. Honey that is adulterated with 25% corn syrup is counterfeit. Ripping the Nike logo off a genuine shoe, and gluing it onto an imported shoe, is still counterfeiting. Swapping the logo on a cheap handbag, with a genuine logo from a ruined one, is still counterfeiting. From these examples and others, they are trained to recognize “hybrids” as fake in multiple industries.

Third party screens with genuine Apple cables and logos? Why should CBP treat that differently? How does CBP know you aren’t going to sell them as genuine parts?


> Third party screens with genuine Apple cables and logos? Why should CBP treat that differently?

Because reselling a genuine cable is completely legal even if you attach it to a third-party screen. Swapping logos is not comparable because the cable provides a genuine function completely unrelated to the logo that happens to be printed on it.

> How does CBP know you aren’t going to sell them as genuine parts?

That isn't CBPs problem, its Apple's problem to identify and enforce their trademark if someone actually does attempt to sell them as genuine parts.


> reselling a genuine cable is completely legal even if you attach it to a third-party screen.

The courts disagree that this is always true.

For example:

https://casetext.com/case/martins-herend-imports-v-diamond-g...

https://casetext.com/case/mary-kay

https://casetext.com/case/warner-lambert-co-v-northside-deve...

Even Wikipedia:

> A trademark owner can overcome the first sale doctrine defense if it can show that the unauthorized reseller is using the trademark on goods that lack its quality control standards.

https://en.wikipedia.org/wiki/First-sale_doctrine


> Swapping logos is not comparable because the cable provides a genuine function completely unrelated to the logo that happens to be printed on it.

Not necessarily. The law cares about the brand, not the function. Morally, there’s a distinction; legally, I don’t see why the functionality has any relevance.

> Because reselling a genuine cable is completely legal even if you attach it to a third-party screen

CBP seized hybrid products, as mentioned above, all the time; even when no logo is present (honey with adulterations is a big problem). The claim it’s completely legal isn’t necessarily true. Individually selling a screen, or a ribbon cable, would probably have much better luck than the combination of the two.


So you advocate for not being able to sell a honda civic with a ferrari air freshner inside it? What about a skoda with a VW radio inside (i think it fits in some models)?


> Because reselling a genuine cable is completely legal even if you attach it to a third-party screen. Swapping logos is not comparable because the cable provides a genuine function completely unrelated to the logo that happens to be printed on it.

Seems like a plausible test but it's easy to poke holes in it. What if I get some shoe laces with a pattern of the Louis Vuitton logo and put them in generic shoes?


> Seems like a plausible test but it's easy to poke holes in it. What if I get some shoe laces with a pattern of the Louis Vuitton logo and put them in generic shoes?

Since the specific example was explicitly marked third party screens that shipped with a official Apple cable included that happens to have Apple logos on it in an invisible way, your analogy is not great.

If I sold a pair of generic shoes labeled as just generic shoes, but lace them with a set of laces from Louis Vuitton shoes that have a small logo hidden on the tip, never advertising this fact in any way, that would be the comparison.

No one is claiming that the whole assembly is an official Apple product, they're not even marketing the official cable, so why should the fact that they did actually use an official cable suddenly make the whole product "counterfeit"?


> Seems like a plausible test but it's easy to poke holes in it.

You are right, its definitely not sufficient and from what I can tell legally, the main test in the cases we have been talking about is whether or not its likely to confuse consumers.

So in the case of the screens, the fact that it is a tiny logo on a functional internal component that the consumer won't see strongly indicates there is little intent or risk of consumer confusion.

In the case of the shoes, there is risk of confusion. Its possible that it could be made legal if sold as "Sketcher's Shoe with Custom Louis Vuitton laces" as that would mitigate the risk of confusion.


For one thing, your examples involve amalgamation in a way that is simply not applicable to computer parts with removable cables. Those have always been understood to be separate parts. If I was selling a computer with an Intel CPU, but used a third-party cooler, or a third-party accessory cable, nobody would claim I was selling a "counterfeit" device.

> How does CBP know you aren't going to sell them as genuine parts?

You can come up with a venal explanation for any item sold in commerce or any human behavior. If we enforced import and intellectual property law based on what people might do, nobody could do anything.


This is a nonsensical argument, the CBP doesn’t know if they will be sold illegally, the same way they don’t know that a company importing corn syrup AND honey is actually going to mix them and sell a counterfeit product. A bottle of corn syrup and a bottle of honey are both legal products, a third-party screen with a hidden non-advertised genuine component is also legal, it’s only afterwards that an illegal product could be made.

It’s impossible for the CBP to know if illegal activity will occur, but you are advocating seizure without due process based on the possibility of a crime.


The logos are microscopic and for internal connections. The screens don't claim to be genuine


Even more so than this, counterfeit goods can be made in the same factories as the real deal. One of the problems that luxury brands have is that contract manufacturers will sometimes either divert items with minor quality-control failures, or overproduce and sell into grey-market channels.

Is there a difference between a factory that overproduces some fancy sneakers and resells them through unauthorized channels (which is a generally accepted example of counterfeiting) and this case? I'm sure there is, but it's a difference of degree rather than a bright-line issue.


Did these cables come from factory overproduction? The article doesn't say.


It doesn't - but, look, this is Apple we are talking about. What're the odds that there's anything in Apple's supply chain that they'd be willing to allow suppliers to sell to anyone else?


A bunch of other commenters are saying these were pulled from legally bought and re-sold phones -- probably trade-ins or damages. I don't know who is right, but given the additional fact that the linked article is only about 38 screens, not hundreds, do you really want to default to the conclusion that the importer is guilty?

Is there evidence other than what intuition says Apple would allow/disallow over the entire market? Keep in mind, this very article is about one method they would use to prevent people importing original parts stripped from broken units.

(To find the 38 number, the article links to https://www.vice.com/en/article/evk4wk/dhs-seizes-iphone-scr... -- see the 4th paragraph.)


Seems similar to Nintendo's use of their trademark as an anti-piracy measure in the early consoles.


That's digital and involved copyright though.

If I go pry the OEM badge off a Ford car and try to re-sell it... it doesn't matter that its a Ford part or that Ford doesn't sell it to the public (only with a car, might be wrong here, but go with me)


It's digital /now/ but Nintendo also used the design of their logo embossed on FDS disks as a (very) primitive form of DRM (there was a corresponding piece of plastic in the drive that would only sit flush if the disk had the right cutouts).


I wonder if this would have held up in the US if it had been disputed. Neither trademark nor copyright is allowed to be functional and Nintendo effectively made their mark a functional requirement for a disk to fit.


Until somebody finds the right die to use to cue the covers. Reminds of the concert venue that was using a hole punch to indicate to the bouncers the person had floor access. Somebody had a pocket knife and everyone was gathered around the corner trying to cut round circles to fool the bouncers. Or the people that reversed the TSA master key from photographs. Shape based "security" is a joke.


The point wasn't that the shape was secret, it's that the shape was trade-marked, and so very easy for Nintendo to shut down anyone using it.


It didn't work like that though.

A pirate doesn't need to copy the Nintendo logo to make the disc functional, they just need to make 2 rectangular slots on each side of the disc.

Nintendo just arranged it so it fits nicely within their logo.


What if I go to a Ford part supplier and buy some Ford parts for cheap before they sent to Ford to be blessed, but after the Ford logo is stamped on them.

Now I'm putting those parts in vehicles that I'm repairing.

What happens when one of the parts that I put in goes to a dealership repair for a warranty repair?

It may be as good as the Ford part (it's the same part), but Ford has no record of the serial number on it.

Is Ford obligated to fix what appears to be a Ford part (what the customer thought was a Ford part) but isn't something that Ford ever sold, tested, or warrantied?


That's not at all what is happening though. It's more like if I was to buy crashed Fords at salvage auctions to take the genuine parts from them, and Ford's private stasi force shows up at my house to take everything and then sell them for their own profit.


Not sure what you are talking about.

From the article, Jessa who operated the repair shop knew that the screens were counterfeit and tried to import them anyway. They were subsequently seized at the border.

Apple is not coming to your house with some private force. They are simply using an IP enforcement program that is open to every copyright holder.


> Jessa who operated the repair shop knew that the screens were counterfeit and tried to import them anyway.

TFA: The parts aren’t being seized because they’re counterfeit. In fact, they’re demonstrably not counterfeit: the only reason an Apple logo is on a piece of a “third-party” component is because that piece is original OEM Apple hardware being legally re-sold


Are there any updates in the five years since this happened? An appeal or lawsuit actually filed?


> the only reason an Apple logo is on a piece of a “third-party” component is because that piece is original OEM Apple hardware being legally re-sold

Because other companies are incapable of putting an Apple logo on their products ?

It's literally what counterfeiters do.


The case isn't closed when you spitball that it could be counterfeit but that's exactly what CBP is doing here.

TFA: [due process good]


Why are you conflating third party parts with counterfeits? If you actually read the article the reason the shipment was seized had nothing to do with the screens, it was the logo on the reused original parts that Apple believed were counterfeit.

Besides, I'm not American so maybe my view is different, but if a company can pay money to a government agency for increased policing for their benefit, and that government agency raids businesses under the direction of that companies representatives, that is a private force. E: And the fact that it's open for any company to use does not make it better in any way whatsoever.


The parts are not counterfeit or fell of a truck. THey are OEM parts from previously disassembled phones, which has been proven with small sample testing.

Back to the car example, imagine if Ford went after ebay and FB marketplace with some regulatory body, citing the huge industry of totaled -vehicle-part-out sales as being an "exploit".

For this ford example, or the exact equivlent example that is occuring with phones, can you possibly make it make sense to me for a regulatory body to waste it's time with such a simple, obvious non-issue? Bonus points if you can do it without referencing Apple's major influence/market share (this would be illegal.)


Wasn't a carveout eventually made for this specific case though?


I assume there's no way to "prove" the provenance of the flex cables. Maybe some type of test? But CBP isn't going to spend millions outfitting their agents with the training and equipment provided to do that.

While I support Apple's right to do this, and can even accept/agree with the consumer protection rationale, the truth is Apple is attempting to fight a massive uphill battle hill with counterfeits. They're obviously losing. It's easy to find knock-off Apple products.

We have some experience as a country allowing over-powered government agencies to seize property based on suspicion and without proof. It accomplishes very little overall, wastes an enormous amount of resources, and harms innocent people as readily as it harms the guilty.

The "risk" of getting your property seized is obviously low enough that counterfeiters can just factor that in as a cost, just as cartels do. You know you're going to lose X number of shipments.

So we're not accomplishing enough to make a real dent in the problem, and in trying to do anything at all, you're harming innocent people.

Not a great look.


So if I assemble a computer for someone, do I have to scratch the logos off everything? Is it reasonable to call the machine "counterfiet" because the CPU says "Intel" on the heat spreader? Or because one of the memory chips says "Samsung"?

Most other manufacturers produce electronics with components from a wide variety of sources, bearing many brand names. What makes Apple components special?


Apple components aren't found in other products, only their own products.

So if a product contains something with Apple logo, and it's not an actual Apple product, the chance it's counterfeit is significantly higher, though obviously not absolute in the rare case of component re-use - which is 100% legal.

It would be impossible to tell if a computer was counterfeit just because it included something with a Samsung logo.

But it would be fairly easy, for instance, to tell a counterfeit Samsung phone if it featured a MediaTek processor. Is it possible someone legally bought 1000 legitimate Samsung phones and swapped out the processor? Sure. And it would be legal.

But is it the most likely case? No.

"Horses not zebras".


That sounds wrong. We (and the border) have no idea who Apple is licensing their technology to. Sure it is easy to say “probably nobody” because they are incredibly isolationist but that won’t always be the case, in fact, it may currently not be the case.


When it stops being the case, it’d be one of the biggest tech stories of our lifetime.


>the chance it's counterfeit is significantly higher

So, "guilty until proven innocent" is the way they look at anything made by Apple and "innocent until proven guilty" otherwise? Seems… fishy at a minimum. Corrupt more likely.


It’s literally just logic and is purely speculation on my part.


In one sense I'm not surprised that the general reaction seems to be "shrug ". This is a story about Apple being Apple, and Border Control being, well Border Control.

Both organisations have a well-deserved reputation. Both are behaving completely in character.

That the biggest company can pay to enlist the support of the most-insulated police force surprises no-one.

Perhaps more depressing is that there's no expectation of improvement. Juicy press expose leading to reform? Not likely.


The way CBP seizures work seems pretty backwards. A similar story happened with Li-Ning where the CBP alleged they were using North Korean labor and started seizing their products and apparently, for whatever reason, the onus moves on to them to prove they are not using North Korean labor, rather than on the government to prove that they are.


I want to take this opportunity to mention CBP has jurisdiction 100 air miles from any external boundary of the U.S


They have jurisdiction everywhere within the US, but enhanced powers near the borders. Some details in [0].

Specifically, they have the right to search and seize "with no suspicion of unlawful activity" within 100 miles of any border - including sea borders, so that's about 70% of the US by population. Also anywhere around international airports and inland waters "with ready access to the open sea", but the 100-mile zone doesn't appear to apply there.

Certain other powers are limited to 10 or 25 miles from the border.

[0] https://crsreports.congress.gov/product/pdf/LSB/LSB10559


Louis Rossmann needs to read this!


[flagged]


> 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.

Only one of which CBP is tasked with stopping.


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.

https://news.ycombinator.com/edit?id=38173368


> Here’s a thought experiment

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.”


Venture to speculate why Apple’s lawyers thought it might work then?

(Sorry, I’m just being cynical because every sane argument has a more insane counter argument that often ends up the more legal one.)


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.


> 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?

Not if this logo was hidden deep inside, and not advertised!

But this is more like selling an unaltered Chanel bag in a bundle with something else.


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.


I think your accidentally misinterpreting the law

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]


Sounds like CBP is how you spell Pinkerton in whatever language


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.


Traveled from Colombia, at the airport one of the agents seemed very interested in my Macbook Pro 2007, specially the logo, that big white 3D logo. I said to myself, hey that would be a clever way to conceal it ;)


3D? Do you mean illuminated?


I'm having a hard time finding an image, but I think that the plastic apple (which also illuminates) is not completely flush with the lid - it protrudes slightly from it, or the edges are recessed, and it is slightly rounded.

I'm also probably mixing it up with the older, proper-coloured (black) MacBooks. Someone will be able to give a better answer soon!


G3 PowerBooks and iBooks were the last to feature rounded, protruding Apple logos on the lid (And on the PowerBook, on the bottom as well!) This was before they glowed, and when they appeared upside down to onlookers with the lid up. All G4 models starting with the Titanium PowerBook G4 and everything since have had flush logos.


Cheers - I thought I might be confusing it.

I’ve dug out an old black MacBook I have, and even though it has a light-up logo, it doesn’t look like it has the same 3D look as the Aluminium MacBook Pro.


I found an image that shows the 3D effect: https://www.realrecyclers.com/images/product_images/original...


This article doesn’t make sense and self contradicts in a major way:

> especially since Apple doesn’t sell these parts separately

> The parts aren’t being seized because they’re counterfeit. In fact, they’re demonstrably not counterfeit: the only reason an Apple logo is on a piece of a “third-party” component is because that piece is original OEM Apple hardware being legally re-sold:

If Apple doesn’t sell these, then how is this unauthorized repair shop getting parts with original logos? That implies that maybe these parts were not obtained legitimately right? Not necessarily counterfeit but maybe stolen.

That being said, Apple doesn’t do a great job here considering SF streets are flooded with actual counterfeit AirPods and AirPods MAX (like in fully sealed boxes that look exactly like original).


There are tons of ways to legitimately obtain these cables that are completely legal. The fact that it's also possible to obtain them illegally should not place a ban on the product.

You're perfectly within your rights to strip your iPhone for parts and resell each piece individually with original logos intact.


> 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.


I'm still not why "original Apple parts" mean anything special?


As far as I can tell the justification amounts to, "it has our logo" followed by a lawyer's version of a meaningful look and the "yadda yadda yadda" gesture. And because Homeland Security is largely unaccountable they'll just accept that justification from Apple when accompanied by a giant wad of cash or the chance to do some operator shit.


> when accompanied by a giant wad of cash

$190 per copyright: https://iprr.cbp.gov/s


Stop trying to pretend it's all about the filing fee, nobody (else) is making that claim.

The article clearly identifies seizure-and-resale as the dubious profit motive, where CBP is permitted to erase trademarks and make money selling the seized equipment at auction.


Parts produced by Apple are allowed to have Apple's trademark on them. That's pretty much the reason trademarks exist. In the same way, only original Honda parts are allowed to have the Honda trademark on it.

Of course in the case of Apple's customs bullying, hardware is being stolen because it's composed of a mixture of Apple parts and non-Apple parts. Like seizing an aftermarket car door because you put a Honda window control assembly into it.


> In the same way, only original Honda parts are allowed to have the Honda trademark on it.

There you have it. They had the logo on it. They were original.


If they're stolen, go prove it in court. The logo doesn't really enter into it.


Counterfeiting parts, including passing even a small part off as an original OEM one, absolutely enters into it


This is a non-sequitur to the comment you replied to.


If you buy phones with cracked screens, you have a supply of iPhone flex cables. Apple does not own those flex cables, but them putting their holy sigil[0] on the cables lets them pretend that they do to cash-strapped government agencies that are willing to accept bribes from Apple.

Furthermore, the parts were seized on trademark grounds; the program in question only deals with trademark. There are different processes for dealing with stolen goods (as opposed to counterfeit ones) but those would require Apple to provide proof. CBP's trademark program lets you just say "we own this mark, here's a lot of money, we'll tell you what to seize".

[0] Apple is a religion. Tim Cook is the iPhone pope. Nobody can tell me otherwise.


I think you mean iPope


> cash-strapped government agencies that are willing to accept bribes from Apple

It's $190 to register a copyright and is open to any copyright holder.

And it makes sense to enforce this at the border rather than allowing counterfeit products into the market.


First off, this is trademark, copyright. Second, merely registering a trademark doesn't get you this level of treatment from CBP; Apple pays them significantly more money in order to be able to tell them how they want their trademark enforced at the border. Third, when your shit gets seized by CBP, that's based purely on the allegations of Apple; there's no due process (like there would be with, say, an ITC patent action).

Keep in mind here: the products in question are not counterfeit. If Apple had to sue to get the parts taken out of the market, they would lose, because of very obvious exceptions to trademark law - e.g. official Apple flex cables don't stop being official Apple flex cables when you plug a third-party iPhone screen into them. That would be like, if I sold you a Samsung TV, but I had an Apple HDMI cable hanging off the back of it, and then Apple sued me saying that I was selling a counterfeit Apple TV because the HDMI cable had an Apple logo on it.


> Apple pays them significantly more money in order to be able to tell them how they want their trademark enforced at the border

Do you have a source for this.

Because in the article it does not mention Apple paying any extra money to CBP and there is no information on the CBP website about it.


From the article:

> Apple participates in CBP’s e-Recordation Program, a “service for trademark owners” where American rightsholders proactively re-register their US registered trademarks with CBP and pay regular fees to ensure special, stricter enforcement on the particular trademarks they request.


The source is the article we're discussing.


pretty sure Apple is paying more than $80 to the CBP


Flagged. This is about trademarks.


From the article:

> Apple participates in CBP’s e-Recordation Program, a “service for trademark owners” where American rightsholders proactively re-register their US registered trademarks with CBP and pay regular fees to ensure special, stricter enforcement on the particular trademarks they request.

The fee for e-Recordation is $190 per International Class of Goods (IC) i.e. trademarks and copyright.

https://www.cbp.gov/trade/priority-issues/ipr/protection


[flagged]


What a perfectly zealous response to that opinion, seems to have touched a nerve lol




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