In China the law is whatever the government wants it to be. Courts are not independent like they are in other parts of the word.
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Chinese Official Says Proview Rightful Owner of iPad Trademark
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In China the law is whatever the government wants it to be. Courts are not independent like they are in other parts of the word.
Punish the Chinese consumers?? Steve is rolling over in his grave at that one.
What an unworldly comment.
Had it not been for the exponentially growing Chinese iPhone consumer base whom you wish to punish, Timmy's quarterly conference call two days ago wouldn't have been so cheery and well received... Apple stock would've continued its dreadful downward correction sell-off... your beloved company value would've deteriorated right before your eyes amid the lawsuits and the looming Samsung threat... that would not bode well with Apple fans and jittery investors alike.
the new iPad won't even be on sale in China until in a few months... when it does, you can expect unprecedented sales numbers that would again exceed forecasts... and to think Tim Cook visited China on your behalf to repair American perception of its unfair labor practice is laughable... the CEO was in China primarily to rub shoulders with Chinese technocrats in order to maintain and to build new "guanxi" in order to further penetrate the vast market... one which almost all Fortune 500 companies are frantically clawing their way in.
A typical arrogant attitude towards China, I guess you will change your mind after reading this:
http://www.nytimes.com/2012/04/25/technology/apple-profits-up-as-iphone-sales-grow-88.html
Mr. Cook said that Apples quarterly revenue from China was $7.9 billion, about 20 percent of total company revenue. Furthermore, that was triple Apples China sales in the same period a year ago. In contrast, Apples China sales during its last fiscal year were about 12 percent of total revenue. Two years ago, Apple sales in China were 2 percent.
Mr. Cook will definitely be fired if he lose the China market. 20% of revenue!
Generally speaking, your statement is correct. But the fact is Apple screwed up in this case!
Someone said it's unfair for Apple to pay too much. Really?
How about the stories in domain name trading market? Let's see this:
http://macapper.com/2011/05/04/apple-purchases-icloud-domain-name/
My source, who is familiar with the company, says that Xcerion has sold the domain to Apple for about $4.5 million. Xcerion hasnt responded to my queries as yet. At the time of writing, the Whois database showed Xcerion as the owner of iCloud.
Proview registered 'ipad' in the year 2000, not in 2010. Nobody can say they had a plan to steal money from Apple purposely. Instead, Apple tried to steal 'ipad' from Proview.
'Proview Taiwan Headquater' and 'Proview Shenzhen' are two different legal entities, while the former one only held 'ipad' trademark outside of China.
Apple should fire their IP/Trademark acquisition lawyers instead of accusing the 'liar'.
Let's judge by facts, not by emotions. That's business, no mercy to mistakes.
You mean punish the people that kill millions of sharks just for their fins, tigers for their "parts" for weird medicines...countless other animals that are going extinct,,, the same people that are cutting down millions of acres of rain forest, the same people that have no problem what so ever in selling counterfeit goods including Apple....You mean those people !!!!!
Apple get out of China !
The iPhone you are holding against your cheek every hour of the day was personally assembled together by the bare hands of "those people" who "kill sharks, eat tiger parts, cut millions of acres of rain forests, and sell counterfeits"...
if you really stand by your moral high horse, refrain from using all Apple products or anything made in China for that matter...
you might as well throw your made in China shoes, your socks, your underwear, your t-shirt, your jacket in a large bonfire while circling and chanting "down with Mao... down with Mao"...
while you're at it, turn off your made in China microwave, dishwasher, refrigerator, TV, air conditioner, washing machine, and lights to contemplate in silence & darkness as to why you live a life of capitalistic hypocrisy.
sleep well... on the floor.
Just saying...
What happened here: Proview owned a trademark. Apple through a subsidiary entered a contract and paid them money to transfer the trademark to Apple. Proview has so far refused to transfer the trademark.
So currently as far as trademark registration is concerned, Proview still "owns" the trademark. Until Apple wins the case, Proview is ordered by the court to transfer the trademark, Proview sends a lawyer to the trademark office, and if that lawyer is hit by a car sends a second lawyer, who then fills out all the relevant forms, pays all the relevant fees, an official puts all the necessary stamps on the papers, only then will Apple own the trademark.
But the real question is not: Does Proview own the trademark? But: Can Proview stop Apple from selling products under the name iPad, or allow anyone else to sell products under the name iPad? And the answer to that is: No ********** way.
What happened here: Proview owned a trademark. Apple through a subsidiary entered a contract and paid them money to transfer the trademark to Apple. Proview has so far refused to transfer the trademark.
So currently as far as trademark registration is concerned, Proview still "owns" the trademark. Until Apple wins the case, Proview is ordered by the court to transfer the trademark, Proview sends a lawyer to the trademark office, and if that lawyer is hit by a car sends a second lawyer, who then fills out all the relevant forms, pays all the relevant fees, an official puts all the necessary stamps on the papers, only then will Apple own the trademark.
But the real question is not: Does Proview own the trademark? But: Can Proview stop Apple from selling products under the name iPad, or allow anyone else to sell products under the name iPad? And the answer to that is: No ********** way.
This is not quite right I believe. If you look at the documents from All Things D., you will see that the subsidiary set up by Apple entered a trademark transfer agreement with Proview (Taiwan), the parent company of Proview (China). The problem seems to be that Proview (China) was the real owner of the trademarks. So unfortunately for Apple (and unless proven otherwise in documents we have not seen), Apple's lawyers have screwed up by entering a contract to purchase something that Proview (Taiwan) didn't own directly. So as this official mentioned, they seem to be on the wrong side of the law on this one. Of course they could sue Proview (Taiwan) for misrepresentation and theoreticaly for their entire loss (i.e. the amount of any settlement they reach with Proview (China), but you can count on the Proview peope to make sure any link between Proview (China) and Proview (Taiwan) has already disappeared.
What is the bigger problem ? Apple has got much more leverage than Proview on this one. The Chinese government could not care less about a Taiwan-invested company which is already bankrupt. Apple is a major employer in China and the company is treating this market really seriously and successfully. It is already a small wonder that Tim Cook was able to meet Li Keqiang a few weeks ago (remember, this guy is going to be prime minister). This is no small deal indeed.
So why can't China just do with Proview and hand over the tradmeark to Apple ? Well, the situation gets complicated here becaus the Chinese government also does not want to show that they do not care about the rule of law (under which Proview (China) is (apparently) right. The Chinese government has a strong interest in showing that the law is the law, especially since foreign media keep saying it is not so.
In my opinion this is why this whole situation is so complex - on the one hand Proview is really a fraud and their claims ought to be ignored, but on the other hand they are actually on the right side of the law and there is pretty much nothing you could do about that in a ruled-by-law country.
I largely agree with what roan* says. I would add the ruling of extortion is something that should be considered, or the facts therein when considering the case in China. Furthermore the contract was with the mothership on behalf of the subsidiary with a rep of the subsidiary as a part of the negotiations and agreement. This fact alone would seal it for Apple in the USA (Agency relationship), but legal precedent may be less evolved in China. This case may help to form legal directions in China generally and if so that would be a good thing.
Rocketman
Rocketman
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Hmm not really buying that.
- Wall street Journal Reporting on the Hong Kong court ruling for the case.
So the independent Hong Kong court system ruled in favour of Apple. Not just in favour but ruling that Proview was attempting organised extortion. The Chinese court is ruling in favour of a Chinese company trying to pull billions of American dollars into China.
Sounds about right.
One minor nit. The news article we are commenting on is a Chinese "official" stating his "view" Proview is the current owner.
1. That is not the court
2. That is the regulator who rightfully has a list that everyone agrees still says that
3. This is what a Chinese legal action is intended to change
4. That day in court has not arrived yet
5. There is considerable personal risk for the defendants if China finds they extorted Apple intentionally because the penalties in China for that are, shall we say, harsh.
Rocketman
That would be awesome if the Chinese court nailed them to the wall
I think its the fact that they asked for up to $2 billion that makes it so distasteful. If they had asked for a couple of million it would somehow seem better.
2 million
= Hey we didn't realise you were Apple, can we have some more money that you can easily afford?
2 billion
= Hey we didn't realise you were Apple, lets see if we can rob you at gunpoint.
as Rocketman says, so far there has been no definitive judgment in China. Also do not forget that Hong Kong and China have different legal traditions - in Hong Kong, common law where inferred agency is recognised, and China, a Civil law country, where agency and representation need to be express.
Another important point is that for the trademark transfer to happen in China, it must be registered withe the trademark office. This (to Apple's despair I guess) never happened. I checked myself the other day and the two trademarks are still in Proview (China)'s name. And again, there is not much Apple can do about this.
Oh, and for the record, Proview is Taiwanese, not Chinese.
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That would be awesome if the Chinese court nailed them to the wall
I think its the fact that they asked for up to $2 billion that makes it so distasteful. If they had asked for a couple of million it would somehow seem better.
2 million
= Hey we didn't realise you were Apple, can we have some more money that you can easily afford?
2 billion
= Hey we didn't realise you were Apple, lets see if we can rob you at gunpoint.
Agree, but unfortunately this does not change the legal position much. They could be asking for 10, or the whopping 100 Apple has and (so far as the legal position seems to be) Apple could still not do anything about it.
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That would be awesome if the Chinese court nailed them to the wall
I think its the fact that they asked for up to $2 billion that makes it so distasteful. If they had asked for a couple of million it would somehow seem better.
2 million
= Hey we didn't realise you were Apple, can we have some more money that you can easily afford?
2 billion
= Hey we didn't realise you were Apple, lets see if we can rob you at gunpoint.
Agree, but unfortunately this does not change the legal position much. They could be asking for 10, or the whopping 100 Apple has and (so far as the legal position seems to be) Apple could still not do anything about it.
I thought it was Chinese as I looked it up on wikipedia as it seemed rather unclear in the articles. Wiki says its Chinese. Of course its only as accurate as the person who typed it.
http://en.wikipedia.org/wiki/Proview_International_Holdings_Ltd
Aha, the google translation of Proview's own site says it started in Taiwan in 1989 but it doesn't explicitly say its still a Taiwanese owned company.
Hover over first chinese text-> company profile -> course of the background
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The cow is sacrisanct in India - a ban to all beef producing countries too! Live in the real world fella!
What is the legal standard in Taiwan? If agency is recognized in Taiwan and Proview China is a "subsidiary", that is an express agency. Whether it is recognized that way or meets some legal definition notwithstanding.
BTW, interesting trick to have the contract say one thing but mean another because of conflicting legal standards. Caviat Emptor.
One would think China would recognize agency by default if the contract was entered into in an agency jurisdiction. I presume their legal system recognizes foreign contracts at all and thus that there are differing meanings for those contracts.
One of the downsides to common law is it's really hard to kill bad precedent or stale precedent. There is no precedent to change it without an instant case on topic. It is interesting to watch our governments in particular, strategically persue and drop/settle cases, as a means to manage/influence precedent to aid themselves in the future. The government alone interacts with the legal system frequently enough to coordinate this effort in every state, district, and internationally. It is interesting to watch when it happens. Someone should write a book on that!
Rocketman
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You are saying "I'm not quite right". Please point out what exactly in my post is not correct. Company owns trademark, Apple pays company to transfer trademark, company doesn't transfer it. The reason _why_ the transfer happened is totally irrelevant to this. And for all we know, Proview's owners are muppets led by one Kermit and one Miss Piggy, unless we are shown documents that prove otherwise.
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That would be awesome if the Chinese court nailed them to the wall
I think its the fact that they asked for up to $2 billion that makes it so distasteful. If they had asked for a couple of million it would somehow seem better.
2 million
= Hey we didn't realise you were Apple, can we have some more money that you can easily afford?
2 billion
= Hey we didn't realise you were Apple, lets see if we can rob you at gunpoint.
Asking for 2 million: Apple may pay to get rid of the pests.
Asking for 2 billion: Apple will not pay a penny and do what they can do hang up their entrails on a fence post to discourage similar behaviour.
The root question is did Apple act in good faith in the purchase from Proview. If yes, then Proview is in breach. If Proview misrepresented their ownership of that trademark for the Chinese market, that is a matter for the criminal courts. The irony in all this is that China does not respect the rule of law and flagrantly allows its companies to abuse the rights of international companies. If China Inc. is behind this, maybe USA inc. should back Apple. With the Steve's personality as backdrop, just yank the mfg. business out of china and see how they like that. We don't need to feed China any more money anyway.
Has there ever been an English translation of the actual court order wherein they rule Proview committed fraud? Link?
The claim is that Proview A and Proview B are separate companies, that Proview A sold a trademark that they didn't own, and that Proview B still owns the trademark. So according to Proview B, Proview A are a bunch of criminals who sold a trademark that they didn't own. If that was the whole of the story, then clearly Proview B shouldn't suffer because of the evil deeds of Proview A. Apple would of course have a claim against Proview A, but since Proview A is bankrupt that doesn't help a lot.
Apple however says that Proview A and Proview B are run by the same people, and Proview B told Apple that Proview A owned the trademarks and would sell them to Apple, and apparently Apple has proof for this.
"Criminals" is quite a big word when all the facts point to mere fraud. "Gooks" is probably more appropriate.
Both are bankrupt actually. Doesn't make a big difference though.
The point of my explanation is that whatever we could think is fair here does not matter under PRC law. From a PRC law perspective, the trademarks were never transferred from Proview (Shenzhen) to Apple. Again, this is why the Chinese government is in such an embarrassing position. Proview has zero leverage over the government, while Apple does, but the government can't just break the law.
The entire trademark transfer documentation was signed a while ago. Proview (Taiwan) even signed the simple form transfer document to be submitted to the PRC trademark office. Read the All Things D documents. The problem is that this agreement is worth nothing because Proview (Taiwan) did not own the trademarks !
I do not see Apple winning that case in China unless there is major change in jurisprudence regarding trademark law in China. The French company Castel Frères (in existence since 1949) has just a few days ago been ordered to pay US$5million to a trademark squatter who registered the trademark "Castel" in China (to conduct a similar business to Castel Frères) in 2005. China is a first-to-file country and it does not matter if you can prove through other means that you owned, used, purchased the trademark before the current registrant. The current registrant is always right.
Yes it can and it already did in a few cities. But in contrast, this is an area where the central government can cool down things a little. It is much easier to prevent the local government authorities to move in this direction than saying Apple owns the trademark. For instance, Proview sought to prevent export of iPads to other countries (pretty big blow for Apple, eh?) and the Customs (which of course are controlled by the government) said "yeah, sit on this"
Funny how you think that someone committing "mere fraud" is not a criminal
The bankruptcy is of course essential to the whole matter. Whatever money Proview B would be able to get from Apple would be money that Apple could claim as damages from Proview A. Being bankrupt doesn't stop Proview B from collecting money, but it stops Proview A from paying for damages.
Funny how you think that someone committing "mere fraud" is not a criminal
Well living in China you have to adapt to a whole new scale of values.
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security."
This only applies to apple if apple approached them by forming a dummy corporation it is no longer apple even though apple formed the corporation. It would be up to proview to find out the history of the corporation they're dealing with. And by the way " i " anything would have to be apple so what numnut would sell it for so little.
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security."
This only applies to apple if apple approached them by forming a dummy corporation it is no longer apple even though apple formed the corporation. It would be up to proview to find out the history of the corporation they're dealing with. And by the way " i " anything would have to be apple so what numnut would sell it for so little.