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Apple's Trademark Exploit

blog.giovanh.com

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Re: Apple's Trademark Exploit

#51

Post by enragedcacti »

gjsman-1000 wrote: post #43
enragedcacti wrote: post #38

Earlier quoted context omitted.

> 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 counterfei…

> 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.”

Re: Apple's Trademark Exploit

#52

Post by gjsman-1000 »

enragedcacti wrote: post #51
gjsman-1000 wrote: post #43

Earlier quoted context omitted.

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 counterfei…

> 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 ‘cou…

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.)

Re: Apple's Trademark Exploit

#53

Post by CivBase »

etchalon wrote: post #32

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 obvi…

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?

Re: Apple's Trademark Exploit

#54

Post by CivBase »

gjsman-1000 wrote: post #49
CivBase wrote: post #47

Earlier quoted context omitted.

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 On…

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 hand…

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.

Re: Apple's Trademark Exploit

#55

Post by emodendroket »

mherdeg wrote: post #25

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.

Re: Apple's Trademark Exploit

#56

Post by emodendroket »

bruce511 wrote: post #22

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 expecta…

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.

Re: Apple's Trademark Exploit

#58

Post by etchalon »

CivBase wrote: post #53
etchalon wrote: post #32

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 obvi…

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".

Re: Apple's Trademark Exploit

#59

Post by emodendroket »

enragedcacti wrote: post #45
gjsman-1000 wrote: post #30

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 counterfei…

> 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 is…

> 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?

Re: Apple's Trademark Exploit

#60

Post by enragedcacti »

gjsman-1000 wrote: post #52
enragedcacti wrote: post #51

Earlier quoted context omitted.

> 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 ‘cou…

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.
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