CBP Seized a Shipment of OnePlus Buds Thinking They Were 'Counterfeit' Apple AirPods (techcrunch.com) 103
U.S. Customs and Border Protection proudly announced in a press release on Friday a seizure of 2,000 boxes of "counterfeit" Apple AirPods, said to be worth about $400,000, from a shipment at John F. Kennedy Airport in New York. But the photos in the press release appear to show boxes of OnePlus Buds, the wireless earphones made by smartphone maker OnePlus, and not Apple AirPods as CBP had claimed.
Can't fix clueless (Score:1)
Is this the government equivalent of "Publish or perish"?
'Counterfeit' is subjective (Score:3)
Of course that goes by the wayside when there is a political mania to bolster the case that China's rise in the world economy is unfair and driven by 'stealing' knowledge and trademarks from the US. Not to say a lot of that doesn't happen as well. But the US government is now so inept, unprofessional, and politicized, there's no telling.
Re:'Counterfeit' is subjective (Score:5, Insightful)
These clearly say "OnePlus" on the box in bold red. For them to be counterfeit they have to be trying to pass them off as Apple products.
They take the generate shape of an in-ear headphone, can't patent that or obviously Apple would have tried to.
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Reminds me of the time back on 2012 when I thought I got a really good price [techcrunch.com] on an iPhone. The ad was definitely right that it was a hot deal.
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They are earbud shape, the shape of the human ear determines the form factor in the same way as the shape of the human head determines the form factor of spectacles.
Apple can't claim a design patent or trade dress protection on the colour white, especially as there are already many many other similar shape and colour headphones on the market and in fact there were before Apple released AirPods.
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Re: 'Counterfeit' is subjective (Score:2)
That would maybe hold more water as an argument if AirPods didnâ(TM)t look completely different to every single ear bud style headphones that came before them.
Re:'Counterfeit' is subjective (Score:5, Insightful)
A copyright infringing product is not the same as a counterfeit product. If they're not passing them off as Apple earbuds, then they're not counterfeit Apple earbuds, as the CBP claimed. End of story.
And for copyright infringement to be in question would require court cases to be held and verdicts (or at least preliminary injunctions) passed against OnePlus before there would be any question of seizing products, which is not the case here.
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In this case it would be trademark law involved, not copyright.
There sometimes are fuzzy cases though. Sometimes a manufacturer will copy everything about a leading product by the logo. And sometimes a counterfeiter realises how easy it is to import crates of those perfectly legal products, and slap a logo on them.
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Patent is about functional design.
Trademark is about avoiding customer confusion over branding.
Copyright is about expression.
Agreed with SuricouRaven that this type of counterfeiting is about Trademark, not Copyright. If they made their own earbuds and branded them as their own earbuds, then there's no trademark infringement, and therefore no counterfeiting. If there's a patent dispute then Apple should be taking them to court over patent infringement. Even if they can convince the government to seize the O
Re: 'Counterfeit' is subjective (Score:3)
The term youâ(TM)re looking for is trade dress, not trademark. It is why no one else can use the Coca-Cola bottle shape and why Apple won all those cases against manufacturers who copied the original iMac design.
And really, I could see a case for trade dress infringement here. At angles that do not show that shiny silver disk part these headphones do look VERY similar to the AirPods.
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The term youâ(TM)re looking for is trade dress, not trademark. It is why no one else can use the Coca-Cola bottle shape and why Apple won all those cases against manufacturers who copied the original iMac design.
And really, I could see a case for trade dress infringement here. At angles that do not show that shiny silver disk part these headphones do look VERY similar to the AirPods.
The reason Coca-Cola can trademark their bottle shape is that it isn't a functional design, it is purely cosmetic. A functional design would have to be covered under patents not trademark. Most of the similarities are functional ones e.g. Ear shaped and no cord. The white color is too generic to trademark and at this point so are are the stems so I would say there is no overlap here.
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There are situations where a color can be trademarked. 3M was allowed to trademark its blue painters tape because the courts decided that the color was not functional -- the tape is designed for temporary use.
Unfortunately for Apple, there is ample precedent establishing that color IS a functional element of fashion. Apple is clearly selling its devices as fashion accessories, so they cannot trademark the color. They also can't trademark the aspects of the design that are functional; the basic shape is dict
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All of this passed muster with the FCC when OnePlus sent the design to them. https://fccid.io/2ABZ2-E501A [fccid.io]
These are valid and legit OnePlus product. CBP screwed up. Plain and simple. But Trump never admits a mistake, so expect him to say "B-B-B-u-t CHINA BAD!"
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I don't think the FCC is an arbiter of trademark law. ...From what I see here I agree that it's a valid, separate product. I just don't think that the FCC's technical approval constitutes authority on the matter of counterfeiting.
Re: 'Counterfeit' is subjective (Score:2)
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You can copyright the design of all of them.
No you can't. You can claim a trade dress, but that is it. You can't copyright a design that is not uniquely functional and as Apple definitely does not have a copyright on speakers that fit in ears they don't have a copyright.
In any case it's not up to customs to make any decision on matters of copyright or trade dress.
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You can't copyright that, but they can get a design patent and trademark. Then it's up to the courts to decide these things, whether or not the trademark is valid.
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These clearly say "OnePlus" on the box in bold red. For them to be counterfeit they have to be trying to pass them off as Apple products.
They take the generate shape of an in-ear headphone, can't patent that or obviously Apple would have tried to.
I'm surprised Apple didn't get a design patent when the Airpods fist came out as they seemed to be the first plug on a stick design, IIRC.
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These clearly say "OnePlus" on the box in bold red. For them to be counterfeit they have to be trying to pass them off as Apple products.
They take the generate shape of an in-ear headphone, can't patent that or obviously Apple would have tried to.
I'm surprised Apple didn't get a design patent when the Airpods fist came out as they seemed to be the first plug on a stick design, IIRC.
They did [google.com]. This may actually be a patent infringement seizure under the ITC, rather than trademark counterfeiting. Tough to say from the article.
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These clearly say "OnePlus" on the box in bold red. For them to be counterfeit they have to be trying to pass them off as Apple products.
They take the generate shape of an in-ear headphone, can't patent that or obviously Apple would have tried to.
I'm surprised Apple didn't get a design patent when the Airpods fist came out as they seemed to be the first plug on a stick design, IIRC.
They did [google.com]. This may actually be a patent infringement seizure under the ITC, rather than trademark counterfeiting. Tough to say from the article.
Yea, I saw that one but it's for a wired version, so I wonder if it would cover a wireless one as well? They clearly are different in design, so I doubt it. It would seem they would fail an obviousness test but who knows?
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This may actually be a patent infringement seizure under the ITC, rather than trademark counterfeiting.
It's 2,000 earphones. Apple's lawyers wouldnt get out of bed to stop 2,000 earphones.
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Only because Louis Rossman is an idiot. He wants to pass off those batteries as genuine Apple products. Yes, I get it, Louis Rossman is a hero. Except when he's an idiot. He's passing off refurbished batteries as Apple batteries, which is not just bad, it makes what Louis Rossman did counterfeiting. He's lucky Apple just seized the fake batteries and didn't get him charged with counterfeiting.
This is especially since the
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There were thousands of earphones that shape before, just with wires.
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if you buy an Apple iPhone at an Apple store, bring it to China, then have someone disassemble it and ship the screen to the USA it will be seized as a counterfeit part.
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The main technical difference is that Apple jacks up the prices.
Re: 'Counterfeit' is subjective (Score:2)
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My kid has a Chinese made toy robot that plays the Transformers theme - directly sampled from the cartoon. The robot doesn't look anything like a Transformer. It's the most half assed counterfeit I've ever seen.
Re: 'Counterfeit' is subjective (Score:1)
Re: 'Counterfeit' is subjective (Score:1)
Re: 'Counterfeit' is subjective (Score:2)
But the US government is now...
Say those with no perspective. None of the corruption and apparent insanity in politics and government is new; you just need to have not been born yesterday to be aware of it.
apple taking out the any one makeing an phone (Score:1, Troll)
apple taking out the any one makeing an phone when it's only apple app store cut will be 40-50%
CBP Screwup or Apple? (Score:4, Interesting)
We already know Apple teams up with CBP regularly. They fight to keep legitimate salvaged parts out of repair shops every day claiming they are counterfeit parts despite having come from breakdowns of Apple devices. How much of a stretch is it to believe that they would take an opportunity to knife a competitor in the back?
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How much of a stretch is it to believe that they would take an opportunity to knife a competitor in the back?
How? I mean the exact process. Apple can't tell the CBP to do anything with any product that doesn't pretend to be Apple. This doesn't pretend to be an Apple product, that is quite clear on the side of the box. The only people the CBP is allowed to listen to when it comes to taking products that look like others (when not actively being passed off as another company's products) are court judges.
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How much of a stretch is it to believe that they would take an opportunity to knife a competitor in the back?
How? I mean the exact process. Apple can't tell the CBP to do anything with any product that doesn't pretend to be Apple. T
The updated comment from CBP says:
"Apple has configuration trademarks on their brand of earbuds, and has recorded those trademarks with CBP."
So mostly CBP but with a steer from Apple.
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Then the CBP screwed up. They aren't allowed to enforce configuration trademarks without a court request relating to a specific case.
Free link (Score:2)
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Re: Free link (Score:2)
So what happend? (Score:3)
It wasn't clear from the tweet what actually happened: Did they seize counterfeit ibuds and use a wrong picture for the tweet or did they actually seize the wrong product?
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It wasn't clear from the tweet what actually happened: Did they seize counterfeit ibuds and use a wrong picture for the tweet or did they actually seize the wrong product?
https://www.theverge.com/2020/... [theverge.com]
Re:So what happend? (Score:5, Insightful)
CBP seized the wrong product. They look physically similar to the AirPods, and that was justification enough. This happened to SparkFun a while back [sparkfun.com] where their totally legit house-branded yellow digital multi-meters looked enough like Fluke low-end multi-meters that CBP seized and destroyed the shipment. In that case all parties acted like responsible adults and everything was cool. Thing is - Apple (should have) had little to no direct control of this. CBP acts on behalf of, but independent of, IP holders. CBP made a mistake here, thoug - that's clear enough.
Hopefully Apple, CBP, and OnePlus can come to a happy solution.
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(and like trade dress trademarks or not, they are a thing)
Therein lies the crux of the matter: In the Sparkfun case, it wasn't the CBP being idiots - it was a stupid law. To use the time-honored car analogy, most cars are available in similar colors from different manufacturers and the sky hasn't fallen.
There simply shouldn't be a law that says you can't make a yellow & gray multimeter because that specific color scheme is owned by another manufacturer. It's akin to saying you can't make a silver car with black trim, because that belongs to Ford.
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The meters weren't legit.
Yes they were, and the CBP didn't even sieze them due to any kind of "legitimacy". The CBP siezed them because Fluke has a trademark on the colour used on the multimeters, and they infringed the trademark (though it is questionable whether that would hold up in court). Even now Sparkfun is selling the exact same very much legitimate multimeter with just a different colour.
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They are idiots. Should we seize every oxford shoe that vaguely looks like the originals worn around Balmoral Castle in the 1800s? Or maybe we should start seizing non-campbell's chicken soup because it has broth and noodles and bits of chicken and comes in the same sized can.
We've become a society of entitled morons.
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What strange examples you picked. CBP are a US government agency, they are unlikely to care about the questionable claim that Balmoral Castle, or thereabouts, has on oxford shoes. Campbell's soup is famous for being condensed and therefore comes in smaller that regular cans.
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Campbell's homestyle chicken noodle:
https://hw.menardc.com/main/it... [menardc.com]
Market Pantry's homestyle chicken noodle:
https://image.influenster.com/... [influenster.com]
Notice the same 10.5oz cans, the similar label coloring, same cut to the noodles, prominently displayed chunks of carrot and chicken. They look similar and probably taste fairly similar, but no one is going around snatching cans of soup off the shelf because they are clearly different products by different companies. So what about airpods vs oneplus buds?
airpods:
htt [ytimg.com]
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You are right. I've actually never seen or heard of Market Pantry before. Where I shop Campbell's is the only soup that comes in smaller cans.
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and that was justification enough
No it wasn't. Looking similar does not make a product counterfeit. The only you can seize a similar looking product that doesn't attempt to pass off as another product is with a court order.
It's also not remotely what happened with SparkFun who attempted to import a product that directly infringed a trademark. Apple has trademarked their logo, but they have not trademarked the colour white, and are unable to trademark earbuds. They also can't trademark trade dress directly, a court is needed to make a decis
Re: So what happend? (Score:2)
It appears they proudly seized a legitimate product. The photos appear in multiple CBP announcements, they are apparently quite enthusiastic about how they have "protected" people from dangerous counterfeiters.
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They seized earbuds that were designed to look like AirPods but did not actually have the Apple brand name on them. For most people, that would cause it to be seen as "yeah, at least knockoffs", but because it is Apple and DHS, it's now "really bad".
Try importing some "champagne" or "prosciutto" in the EU, even without the label. You'll have the same thing.
Re: So what happend? (Score:2)
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Champagne is fermented inside the bottles so those bottles tend to use thicker glass and have distinctive cork retaining setups. They are a fairly different shape to non-fizzy wine bottles.
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I was responding to "...most bottles of wine are of similar shape as that as a bottle of champagne...".
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No, sparkling wine or brut does not come in champagne bottles, sparkling wine is bottled after fermentation (or added CO2). "Champagne" not from the Champagne region, which the US and China has plenty of is banned in the EU.
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The EU has a 'protected designation of origin' status for some foods, but it's independent of trademark law, and it only applies to what you call your product. You can make a product that is identical to Champaign in every way, but you can't call it Champaign unless it is made in the traditional region. That's why the supermarkets here sell 'Apetina' - a cheese that is identical to feta in all but name.
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You also can't call it champagne-like or feta-like (often labeled as "Champagne-style" or "Belgian-style" in the US). Only California wines have the exemption on "méthode champenoise" and can call it Champagne through some century old loophole.
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Aehmm. No.It is exactly WITH the label that will get you in trouble. You can import sparkling wine and ham as much as you want. If meant for Italy, you are probably even required to write "prosciutto" on the label. Only if you label it as Ham from Parma or Sparkling wine from the Champagne you're in trouble. And rightfully so, because you're lying about the origin. (Because that's the only thing that is actually special for champagne or prosciutto di Parma.)
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You also can't call it Champagne-like or Champagne-style which is fairly common around the world to designate 'not from the region, but using the same grapes/hops/barley (if you're talking wines, beers etc) and artisanal methods.
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But I think you can call it "Methode champagnoise" if you used the in-bottle fermentation and for other products the -style suffix is common. (at least for beer... but that may be something completely different) Like a Pilsner style beer or a Vienna style Schnitzel (if it's made from pork instead of veal) But I'm no expert here and I think the exact wording you can or have to use is set in a cataloge of trade regulations for each type of product. Wine alone has at least 4 designations based on how far apart
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You can in the US, you cannot import it into the EU even if you call it region-style or methode. The exception is California champagne only because they started importing before these rules.
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They seized earbuds that were designed to look like AirPods but did not actually have the Apple brand name on them. For most people, that would cause it to be seen as "yeah, at least knockoffs", but because it is Apple and DHS, it's now "really bad".
It's not illegal to important or sell knock-offs. It's illegal to pass them off as a legitimate product. Notice what isn't anywhere on the box? Apple logo, and Apple name.
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That's why Amazon lists these OnePlus as: ... iPhone/Android/Apple airpods
Wireless Earbuds Bluetooth 5.0 Headphones
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Cool story, I went and looked: "OnePlus Buds - True Wireless Earbuds with Charging Case, White - Fast Charging, Long Battery Life and Deep Bass"
Don't confuse a shitty 3rd party seller passing off a product as another, and the vendor themselves who make no mention of Apple or Airpods in their listing. And even if they did, notice how in your listing the iPhone is listed against Android? A common list of "compatible" devices you will find on shitty Chinese listings.
Be a better shopper. It's not the CBP's job
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Um... prooobably not. There are a few thousand similar products floating around on Amazon, so unless a) CBP sucks and can't find a needle in a haystack or b) there are lots more seizures not publicized, this was selective and/or over-zealous. [amazon.com]
(on (a) CBP only inspects a fraction of shipments for IP infringement, but that is a funding/political willpower thing.)
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There's no such thing as intellectual _property_. Only government-granted exclusivity in the form of copyright, patents, and trademarks. None of which bear any legal resemblance to the others, so trying to lump them together pretty much guarantees misunderstandings. Basically, if someone knowledgeable uses the term Intellectual Property, you can be almost certain they're trying to pull a fast one. And if anyone else uses it, you can be pretty sure they don't know what they're talking about.
Trademarks are
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If you're getting that abstract, there's not really such a thing as property. It exists as a social construct - and it continues to exist because even if a small number of people decide they do not want to participate in the social construct, the majority has a system of police in place who will enforce it with violence. All law, at the deepest root, is based upon violence or the threat of violence - without it there could be no law, and very little in the way of society.
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So much for not having a standing army on US soil, which is what you just described.
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True, but completely unrelated.
Property has definite legal definition. And the only thing trademark, copyright, and patent law have in common, is that none of them have anything to do with property.
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Are you aware of a radical new technology that lets one person listen to things without anyone else hearing?
Do let us in on the secret.
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Because only assholes force everyone around them to listen to their terrible taste in music, and neural implants are still low resolution and cause brain scarring (not to mention require delicate brain surgery that can potentially cause other potentially life-altering permanent damage)
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Be fair now - genuine counterfeits look virtually identical to the original - how would CBP officers recognize them as "fakes"?
Roku remotes and cop math (Score:2)
This story gave me a chuckle https://www.cbp.gov/newsroom/l... [cbp.gov]
They claim the 1600 Roku remotes are worth $80,000. $50 for a remote? The whole Roku box nearly costs that much! In reality those remotes are worth $10 each at best.
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This story gave me a chuckle https://www.cbp.gov/newsroom/l... [cbp.gov]
They claim the 1600 Roku remotes are worth $80,000. $50 for a remote? The whole Roku box nearly costs that much! In reality those remotes are worth $10 each at best.
If it' the kind that can power a tv and change volume, those sell for $20 by roku. Found that out the hard way when my dog decided it was a chew toy (twice-it survived the first attempt, but not the second). I think she likes the taste of battery acid? She's gone trough several remotes and countless iphone/ipad chargers.
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They retail for $50, their actual value is closer to $5000 for a shipping container.
Government morons (Score:2)
Even more clueless and even more convinced of their superiority that others.
Seems accurate (Score:2)
Seems accurate. In my experience US CBP often has difficulty reading and frequently jumps to unwarranted conclusions.
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Seems accurate. In my experience US CBP often has difficulty reading and frequently jumps to unwarranted conclusions.
Yep. When our baby was born earlier this year, my wife ordered a talking teddy bear that was made by the same company as her teddy bear (that she still sleeps with as a pillow, long story). The only place where she could find it was in England, so it was shipped internationally. So of course CBP gets hold of it and, instead of opening the bear using the velcro opening, decides to just cut into it to look at the voice box. I used to work in an air cargo facility so, as soon as I saw the CBP tape on the b
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I've had one similar experience, sending a coin collector an old British shilling. The envelope made it all the way - empty. The shilling was gone. I suspect someone in customs failed to realise that it was not legal tender, and confiscated it because they thought the value I'd put on the customs declaration was incorrect. Or maybe they were just grumpy and wanted to ruin someone else's day.
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I have a common name. US CBP thinks I'm an arms dealer or something. When I pass through the US border, it's often memorable for everyone in the area.
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I think you mean "a Slashdot user" instead of "US CBP."
Sam
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Now that you mention it, there's more than a little similarity between the two. However, as infuriating as they are, haven't had a gun pulled on me by a slashdot user yet.
just another (Score:2)
Government department that needs to be abolished or redirected. I'm okay with them keeping the illegals out of the country and handling meth, heroin, cocaine... you know the hard drugs. Otherwise they needs to f_u_c_k_o_f_f_...
civil (Score:2)
bullshit (Score:2)
The packaging being blatantly obvious as to what it was, this is something I would consider gross negligence by CBP and grounds for a lawsuit.
SOURCE (Score:1)
Probably related to that:
https://www.gerbenlaw.com/blog... [gerbenlaw.com]
Seems similar to 'rounded corners' in reach...