Is selling replacement parts for the iPhone, not made by Apple (and bear no or another logo than Apple's) illegal? 6 Answers as of March 01, 2013

This question applies to US law and sales on eBay in particular, of iPhone back cover housings with a pear as logo.

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Eminent IP, P.C.
Eminent IP, P.C. | Paul C. Oestreich
It is not clear from the statement of your question whether you are selling an iPhone back cover housing that you make and sell on your own or whether you are reselling someone else's back cover. The infringement analysis is essentially the same for both cases, but you may have contractual indemnification or other remedies in the case of infringement if it is "someone else's" back cover. Additionally, it is not clear what you mean by "an iPhone back cover housing". If it is a replacement back cover housing which physically replaces the one with the Apple logo, you will likely have significant infringement issues and you will want to consult an intellectual property attorney before proceeding, if at all. For example, if you are replacing the back cover of an Apple iPhone with a new back cover housing bearing a "pear logo", the consuming public will likely be confused as to whether such a "rebranded iPhone" is a genuine iPhone or some competing look-alike Pear phone. If there is a likelihood of confusion, there is infringement. In that case, you could be relatively certain that Apple's attorneys would file a trademark infringement lawsuit to prevent you from selling your housings. Apple may also have patent rights in the back cover housing to its iPhone, so your replacement may infringe those patent rights as well. If instead your housing is just a protective cover for the iPhone, like those commonly sold by third parties, then the rest of this analysis may apply. So for a complete answer, more information is needed. Assuming your "iPhone back cover housing" is just a protective cover for the iPhone, please read on. With regard to infringement analysis, you are free to sell replacement parts ONLY if: (1) you are not violating any patent covering the part or have a license under the relevant patent(s), and (2) you are not infringing any trademark that may be associated with the replacement part. Regarding the patent analysis, from the facts given it is unclear whether a patent applies or not. You should seek an opinion of a registered patent attorney regarding your freedom to operate or right-to-use the back cover housing you are selling. Regarding the trademark analysis, it would appear from your statement of the question and supporting facts that the back cover housing has either: (1) no logo or trademark whatsoever, or (2) another logo, *i.e.*, a pear logo, but not an Apple logo. Under the first scenario, if there is no logo or trademark, then clearly there can be no trademark infringement. Under the second scenario, you have some other logo or trademark (a pear) that is presumably associated with the owner, manufacturer or source of the back cover housing you are selling on eBay. The question becomes, does that logo or trademark infringe the rights of a prior trademark owner and additionally, is your "pear logo" registrable? The answer to these questions depends on a lot of factors that have not been mentioned in the statement of the question. For example, when did you start using the "pear logo" trademark? When did the senior user start using his mark? Does your use of that "pear" mark for "back cover housings" raise a likelihood of confusion with the senior user's trademark? Are the marks distinctive? And would the senior user be inclined to allow you to use your similar mark and therefore allow the two of you to coexist in the marketplace? Obviously, this is a very fact specific inquiry and there are many other questions your trademark counsel will want to ask you before rendering an opinion whether it is safe for you to use the mark you want to use and whether it might be registrable. As always, you will want to consult with competent intellectual property counsel before proceeding with most any venture where intellectual property rights may be involved.
Answer Applies to: Utah
Replied: 3/1/2013
Barton Barton & Plotkin
Barton Barton & Plotkin | Maurice Ross
Probably illegal but each part must be reviewed on its own. Back cover housings would probably violate patent and trademark rights owned by Apple.
Answer Applies to: New York
Replied: 2/28/2013
TechLaw LLP | Ross A. Epstein
This question goes to the heart of counterfeit vs. legitimate products. First, the branding of the alternative replacement must not infringe an Apple trademark. I suppose a pear log would not infringe the Apple mark. However, the inquiry cannot stop there. There are other forms of trademark and patent protection which might cover the replacement part you plan to offer and thus make your offer an infringement of these rights. Trade dress (packaging), design patents (the ornamental look and feel of the replacement part) and utility patents (the utility of the replacement part) all could be implicated. If your replacement part falls outside whatever it is that Apple, or others, have protected, then you'd be OK. But one should do due diligence in this regard before taking the risk of offering what amounts to a counterfeit product. Selling counterfeits carries both civil and criminal penalties.
Answer Applies to: California
Replied: 2/28/2013
Law Office of Kirk Buhler
Law Office of Kirk Buhler | Kirk A Buhler
Probably not because it does not resemble the Apple product. As an example many companies sell aftermarket cell phone batteries, phone back housings to accept larger batteries, ink and toner cartridges that fit known brand names without legal problems. As long as the Apple Logo is not present and you are not making a claim that it is made or endorsed by Apple then you should be fine. You might also want to change the style or texture to further differentiate your product from one made by Apple.
Answer Applies to: California
Replied: 2/28/2013
Banner & Witcoff, Ltd. | Ernie Linek
Such actions may be an act of infringement of one or more Intellectual Property Rights owned by Apple. Apple has many patents, many trademarks, and other IPR - and the company seems to be very willing to enforce its rights in these properties. Not using any Apple logo is a good start - but may not be enough.
Answer Applies to: Massachusetts
Replied: 2/28/2013
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