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?
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
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.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
