Dublin, CA asked in Trademark and Intellectual Property for California

Q: Is it legal to sell wireless earbuds that look like Airpods but have a different brand and no reference to Apple at all?

The Idea would be to sell functioning wireless earbuds for cheap with my own brand and wording without any reference to Apple or their specific product (Airpods). Would there be any legal problems I could get into if I was sell these wireless earbuds on Amazon?

2 Lawyer Answers
Kevin E. Flynn
Kevin E. Flynn
PREMIUM
Answered

A: I will defer to trademark attorneys on possible issues under trade dress.

However, if Apple has a design patent on the ornamental appearance of these earbuds, then you may be subject to suit for patent infringement.

For an introduction to patent searching -- http://bit.ly/Patent_Searching

For an introduction to design patents -- https://www.flynniplaw.com/services/legal-services/united-states-design-patents

A few pointers -- first if Apple already has a design patent on their earbuds, then it should be marked on the product or on the packaging for the product. A design patent will start with the letter D. There may be additional patents on other features.

There is some small risk that the Apple design patent application is pending and you won't see it until it issues. At that point, you may need to stop selling this product.

As a general rule -- if you are selling a replica of a distinctive product recently introduced by a large company then there is a substantial risk that you will run into a design patent held by that company. Sorting out whether you are clear of the scope of a design patent is not a DIY project. You will need help from someone who does a lot of work with design patents. Even if legally, you are clear of their design patent -- you should expect to be sued as a large company has the money to file suit against a small player even when their chances of winning are small. They expect you to drop out long before this suit gets to court.

NOTE -- if you are selling on Amazon for delivery outside of the US, you may need to look at Apple patents in the other countries too as your sale into that country can trigger liability under that patent.

If you found this answer helpful, you may want to look at my answers to other questions about patent law are available at the bottom of my profile page at

https://lawyers.justia.com/lawyer/kevin-e-flynn-880338

Kevin E Flynn

Robert Philip Cogan
Robert Philip Cogan
Answered
  • Trademarks Lawyer
  • San Diego, CA
  • Licensed in California

A: A common definition of trademark infringement is creating a likelihood of confusion in the marketplace as to the source of the goods. It would be necessary to look at the facts. It is probably a more difficult case if "look like" means direct copy.

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