Apple puts its logo on the devices it sells: not just the outer casing, but also each internal component. The vast majority of these logos are totally enclosed and invisible to the naked eye.
This seems like a strange practice — especially since Apple doesn’t sell these parts separately — except it turns out to be part of a truly convoluted rules-lawyering exploit only a company like Apple could pull off and get away with.
Remember, trademarks are a consumer protection measure to defend against counterfeits. Apple’s registered logo trademark protects consumers from being tricked into buying fake products, and deputizes Apple to defend its mark against counterfeits.
The Loaded Gun🔗
While some counterfeiting happens domestically the major concern is usually counterfeits imported from foreign trade. This brings us to Customs and Border Patrol, which you might know as the other side of the ICE/CBP border control system. You might be surprised to see them involved with this, since Border Patrol agents are fully-militarized police outfitted to combat armed drug cartels.
But among its other duties, Border Patrol takes a proactive role in enforcing intellectual property protection at ports of trade — backed by the full force of the Department of Homeland Security — by seizing goods it identifies as counterfeit and either destroying them outright or else selling them themselves at auction.1
To get your property back, you have to sue Border Patrol — an infamously untouchable police force — and win.
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.
In exchange, Apple gets to train law enforcement themselves; owners of registered marks can record webinars, and companies like Apple literally get to send their own staff to give Border Patrol in-person seminars on how to identify their products and what all they want counted as infringing.
Between the relative obscurity of the program and the continued cost of paying CBP to enforce your trademarks, only a tiny number of corporations take advantage of this program at all: CBP only reports having 20,758 registered copyrights and trademarks it enforces.
Compared to the 3,114,306 active registered US trademarks and 40,116,623 active registered copyrights, that’s not just a drop in the bucket, proportionally, that’s one droplet in a 600 gallon industrial tank.
Now, this might just sound like presumption of guilt inflicted on the enemies of anyone who can afford it.
A system where the police only enforce the laws they’re paid by private companies to enforce, who pay the police outright in dollars to selectively enforce the law against the payer’s business rivals might seem like a bad framework for judge-and-jury2 style law enforcement agencies like the DHS.
Anyway,
In 2021 (latest data) CBP seized over $3.3 billion in allegedly counterfeit merchandise. But here’s what that looks like in practice:
Versus Third-Party Repair🔗
Repair shop owner Jessa Jones purchased third-party iPhone screens for use in repair, but the shipment from China was seized by CBP.
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.
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.”
From Vice’s coverage:
Jason Koebler, DHS Seizes Aftermarket iPhone Screens From Prominent Right-to-Repair Advocate
Aaron Perzanowski, a trademark, copyright, and intellectual property law professor at Case Western Reserve University’s School of Law, told me that Jones’s parts likely can’t be considered “counterfeit.”“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,” Perza
