I know this would likely best be on my original blog, but for what it’s worth I am considering letting the thing go and there seems to be interest in legal topics. So I bring you a hypothetical slice of my day at work.
Apparently some guys got arrested recently for selling “fake” Samsung mobile phones. As the Chosun tells it:
Park and the others set up a company selling communication devices in March last year and started producing fake Anycall phones from used phones that were broken, damaged by water or exported to China and putting them in made-in-China bodies, police said.
The thing is, based on what I can tell from the newspaper and my experience, these guys were not producing fake phones under Korean law. Assuming the “broken, damaged…, or exported” phone electronics were originally Samsung Anycall, they would not be fakes but repaired phones. Further re-importation of those phones is legal since Korea has no provisions to prevent parallel imports. In short if the guts are Samsung, its not illegal to sell the guts as Samsung.
The catch could be the plastic case. Charge would be the makers were selling counterfeit “plastic phone cases”. The problem is showing that aspect. One could argue the markings on the case are simply describing the guts of the phone. Supporting this line of reasoning is a Korean Supreme Court case last year regarding a Korean maker of remote controls. The court ruled that the maker was allowed to place trademarks on the remotes of the brands they work with. Much like the remotes the bodies are made only to work with specific equipment (in this case Samsung phone electronics).
That all said, there are somethings that may be clear violations based on the article. First if the sold the phones as new, or coming directly from Samsung, they could get busted under competition and trade laws (for the record this is only possible, the Chosun is unclear on the details). Second if the bodies were imported from China simply as bodies (without the guts) that would be a clearer violation of Korean Trademark Law since the arguable link between he bodies and the reconditioned Samsung guts would be more distant (at that point there is no telling their ultimate application).
Finally, for those of you rolling your eyes going “It’s Samsung for god’s sake! We know what is ‘really’ going to happen”. I must say you are probably right. The foregoing was all academic.
Update: Joongang reports that the company also altered Electronic Serial Numbers. While out of my depth this sounds like a violation of telecommunications law. Also, very arguably, could have turned the phones into non-Samsung products making the product a clearer violation of Korean Trademark Law.
6 Comments
If they have been selling these refurbished phones as new, then Samsung would have a legitimate claim against them for damages, I’d think. I certainly wouldn’t like to find out that my ‘brand new’ week old Anycall is a refurbished one.
Besides, who pays 100 000 won for an Anycall anymore? Switch carriers and you’ll get one for free.
I saw a Korean TV commercial where some dude was walking along the sidewalk scratching his phone along the rock wall to make it look fashionable to have a scratched-up phone. This explains it.
Mark, think of it as taking planned obsolescence to an all new level.
Besides, if the innards didn’t match the model number/name on the case, it would make the phones counterfeits… After all, imagine a new car model based on a body made in China and an ancient, refurbished, albeit original engine from the same company… tsk tsk tsk
Yes, a refurbished phone should cost much less. I still get calls for the previous owner on my phone, but its a small price to pay since the phone itself was free other than a hook-up charge.