This blather is unconscionable. Lower minimum wage? To what? menial assembly type people (OK, here, Prof. Peabody, may be a real case of racism.)
[...blah, blah, blah] You do not know anything about me, but I can tell you this, there is not a racist bone in my body.
Quote:
Originally Posted by mhikl
You sound like a thinking person, mstone. Know your history and the future is more likely to be better.
Those who ignore or who are unaware of the mistakes of others from history are likely to repeat those mistakes, however, a person living in the past will never make a difference in the future. The solution to every complex social problem involves compromise. If you have answers for today's economic challenges, let's hear them. You can't just criticize other peoples' suggestions without presenting an alternative solution. If you do, you are part of the problem, not part of the solution.
So Proview sells the rights to the name, probably thinks that it didn't negotiate for enough money the first time around and now they "refuse to honor" the agreement. China isn't becoming more capitalistic, they're becoming more like organized crime.
Couldn't be further from the truth.
Had this happen in any juristiction other than China, Apple would be seriously violating trademark laws.
Facts are pretty simple, if your parent lost your custody.they have no right to sell your property. (Proview Shenzhen is bankrupt, and it is now controled by the creditors and receiver as opposed to the Taiwanese parent. Proview Shenzhen is simply not bound by the agreement entered by its parent with Apple)
Proview might want to rein in their spokesperson. Because that kind of comment sounds like they did have an agreement with Apple and it could be exactly as Apple claims. But Proview is feeling a little hurt over the issue that they undersold the trademark rights since they didn't know it was going to Apple. So they are trying to bully their way into more money.
Which is just the way to get Apple to yank iPad production out of China regardless of what the government says. And then move everything else as well.
Proview Shenzhen has every reason to seek an injunction against apple. Totally legitimate
Facts are pretty simple, if your parent lost your custody.they have no right to sell your property. (Proview Shenzhen is bankrupt, and it is now controled by the creditors and receiver as opposed to the Taiwanese parent. Proview Shenzhen is simply not bound by the agreement entered by its parent with Apple)
This is China we're talking about. This country is corrupted and Proview can buy some influential officials/judges/ministers as much as they like.
Proview is as foreign as Foxconn/Apple in China. Fact is Apple is indeed infringing the trademark Proview Shenzhen has been using for over a decade.
From legal perspective, a parent and a subsidiary are two different entities. The subsidiary will not be bound by the actions of the parent when the parent lost convtrol over him. That's why the agreement between Apple and the Proview parent is invalid when it comes to disposing someone else's assets, even if it is your son (but controled by creditors now.)
Apple can crush Proview like a rotten grape. Then, if Apple wants to, they can shift most of their final assembly production out of China. That would be a major PR win for Apple anyway and kill 2 birds with one stone. Foxconn is setting up a new 12 billion dollar factory in Brazil as we speak. And there are other places Apple can locate assembly factories.
I wonder why the Chinese government would side with Proview on this? Corruption, perhaps? If the Chinese government sides with Proview, they will spark an anti-China campaign with Apple and the rest of the world like never before.
For many years, the chinese government has shown their arrogance and disdain for foreign trademarks and intellectual property. I sincerely hope that people get angry enough and stop buying all the Chinese-made crap at Wal-mart and stop buying Chinese knock-offs of trademarked products. They really need the west to buy their crap more that the west needs to buy their crap.
Chinese government is enforcing a legitimate right. Proview Shenzhen and its parent are two dffrent entities. During the bankcrupcy procedures, Proview Shenzhen's creditors has evey right to refuse to honor the agreement its parent entered with Apple. Ask any lawyer and they would explain to you.
Say you owns a company, and your company is on the brink of bankrupcy and have a bunch of creditors chasing behind your company. The law simply will not allow you to sign a agreement and transfer all the remaining assets of your company to your friend for $1 and leave your company's creditors unpaid. And this is exactly what's happening between Proview and Apple.
Chinese government is enforcing a legitimate right. Proview Shenzhen and its parent are two dffrent entities. During the bankcrupcy procedures, Proview Shenzhen's creditors has evey right to refuse to honor the agreement its parent entered with Apple. Ask any lawyer and they would explain to you.
Say you owns a company, and your company is on the brink of bankrupcy and have a bunch of creditors chasing behind your company. The law simply will not allow you to sign a agreement and transfer all the remaining assets of your company to your friend for $1 and leave your company's creditors unpaid. And this is exactly what's happening between Proview and Apple.
Regardless of how this case plays out in court, either in favour of Apple or not, what really interests most posters here is whether Apple genuinely believes that it had secured the rights to use the iPad name on mainland China or whether Apple was aware that it hadn't. Morally, this is all that matters. Now, why don't you tell us which of those alternatives is true? I and others here will be interested to read references in support of your assertion.
Proview Shenzhen has every reason to seek an injunction against apple. Totally legitimate
Facts are pretty simple, if your parent lost your custody.they have no right to sell your property. (Proview Shenzhen is bankrupt, and it is now controled by the creditors and receiver as opposed to the Taiwanese parent. Proview Shenzhen is simply not bound by the agreement entered by its parent with Apple)
What <are> the facts in this case? I haven't actually seen many other than Proview Shenzhen won't honor the agreement that was struck between Apple and the parent company, and that Proview Shenzhen is <claiming> the parent didn't have the right to sell the trademark in China.
If the parent company was the proper owner of the trademark rights, just because if Proview Shenzhen was using the "iPad" trademark in China with their permission, that doesn't mean they [Proview Shenzhen] owned the rights, it only means that they were allowed [by the parent company] to use the trademark. But that still doesn't grant ownership, only right of use. If Proview Shenzhen was in receivership, that doesn't somehow magically transfer ownership of something they didn't own (only had a right to use) to them.
Using your metaphor (and without more facts), it actually sounds more like a case of your parents not having legal custody of you any more, selling <their> house (that you happen to be living with them in), then having you claiming to 'own' the house (because you're using it) and refusing to leave when the new owners arrive.
Can someone with more in-depth knowledge fill in the blanks here? Did the parent Proview have the legal right to sell the iPad trademark in China at the time the deal with Apple was struck (either because they had direct ownership rights to the trademark, or had the legal authority to sell Proview Shenzhen assets because of the corporate relationship)?
EDIT (correct me where I'm mistaken):
The OP's metaphor stands - with the exception that your parents sold your property <before> they lost custody, because they had the legal right to.
2000 - Proview International registers "iPad" in Europe & elsewhere
2001 - Proview Shenzhen registers "iPad" in China
2009 - Proview International sells "iPad" to IP Application Development (*1)
2010 - Proview Shenzhen defaults and assets are frozen (*2)
2010 - IP Application Development signs an agreement with Apple for use of the trademarks obtained from International
2010 - Apple starts selling "iPad"s in China
*1) The sale explicitly includes the rights held by Shenzhen in China. Shenzhen isn't in default at this point, and is a subsidiary of International. This means International has a minimum of 50% ownership of Shenzhen, and therefore <can> make the unilateral decision to sell a Shenzhen asset to a third party, being a controlling owner of the LTD company. (International owns Shenzhen, which owns the trademark - therefore, International effectively owns the trademark - or at the very least can legally decide on Shenzhen's behalf to sell an asset.)
*2) IP Application Development <already> had an inked agreement with International (who <did> have rights) to buy the trademark. The registration office "assignment" hasn't taken place yet, but ownership is already there. At this point the trademark asset doesn't belong to Shenzhen, so the court improperly allowed the inclusion of the registration when the request to freeze assets was filed. The only problem I see here is that International (as effective owner) didn't do the paperwork to re-assign the registration to IP Application Development. IP Application Development legitimately owns the rights. It's not on record at the registration office yet - but the legal ownership is already clearly settled. It's a paperwork formality. The only claims I see Shenzhen as having is whatever damages or penalties the courts allows for infringement prior to 2009, when International sold the trademark to IP Application Development. However, since Apple didn't sell an "iPad" product in China when Shenzhen still owned the rights, I don't see how they can claim infringement.
Anyone have any more (or better educated) insight on this?
Chinese government is enforcing a legitimate right. Proview Shenzhen and its parent are two dffrent entities. During the bankcrupcy procedures, Proview Shenzhen's creditors has evey right to refuse to honor the agreement its parent entered with Apple. Ask any lawyer and they would explain to you.
Say you owns a company, and your company is on the brink of bankrupcy and have a bunch of creditors chasing behind your company. The law simply will not allow you to sign a agreement and transfer all the remaining assets of your company to your friend for $1 and leave your company's creditors unpaid. And this is exactly what's happening between Proview and Apple.
Actually, unless I'm mistaken, that's what a "limited liability" (LTD) incorporation (which Proview Shenzhen is, according to http://proview.net/About/Global_Network.aspx) allows for. The "limited liability" bit means that you own the company, but you're only responsible for the value of your investment in the company, if creditors come after the LTD company. So the creditors can tag you for whatever value you have in the company (i.o.w whatever monies/value you've already invested in the company, as well as still-held assets of the LTD as well as the the money that was taken for the sale of the LTD's assets in the sell-off), but they can't get you for the full value of the LTD's debits.
In this specific case, the rights to the trademark were legitimately sold before creditors claimed default. That asset is rightly sold and gone. The creditors may have a claim to the portion of the money collected for the sale that pertained to the Chinese trademark rights, but not to the trademark rights themselves.
Anyone have any more (or better educated) insight on this?
The problem that I can see with your argument (which is nicely formulated), is that a court in China has apparently already sided with Proview (Shenzhen). Are proceedings or ruling in China made available to the public in such cases?
Actually, unless I'm mistaken, that's what a "limited liability" (LTD) incorporation (which Proview Shenzhen is, according to http://proview.net/About/Global_Network.aspx) allows for. The "limited liability" bit means that you own the company, but you're only responsible for the value of your investment in the company, if creditors come after the LTD company. So the creditors can tag you for whatever value you have in the company (i.o.w whatever monies/value you've already invested in the company, as well as still-held assets of the LTD as well as the the money that was taken for the sale of the LTD's assets in the sell-off), but they can't get you for the full value of the LTD's debits.
In this specific case, the rights to the trademark were legitimately sold before creditors claimed default. That asset is rightly sold and gone. The creditors may have a claim to the portion of the money collected for the sale that pertained to the Chinese trademark rights, but not to the trademark rights themselves.
This is exactly where you are wrong.
Proview's parent entered into a contract which purported to dispose of an asset it does not own. This is not called "legitimately sold". At this stage, no transfer or legitimate sale ever happened.
A sale has two stages. You enter into a contract with the other party agreeing to transfer your property. By this time, you owe a duty of transfering the property to the other party but before you actually hand over your property, your property is still yours and is not gone. The other party has a contractual right to require you to honour your contractual obligation but does not own the property.
Stage two is you actually hand over the property. Only by this time you lose the ownership of the property.
What happend among Apple, Proview Shenzhen, and Proview's parent is earlier than stage one. The ipad trademark is owned by Proview Shenzhen not its parent. Proview Shenzhen has neither entered into any contract on the sale of the property, nor has any contractual obligation to do so.
Since only the parent company of Proview Shenzhen entered into a contract with Apple. only that parent owes a duty to cause Proview Shenzhen to transfer the trademark.
If the transfer were to happen, it can only be realized by the parent excercing its power and legal capacity as the shareholder of Proview Shenzhen (passing a shareholder resolution to require Proview Shenzhen to proceed to transfer the trademark) to the extent permited under Proview Shenzhen's Articles of Association and China's Company Law .
If Proview Shenzhen was a company operating normally. Apple would be able to file a claim against the parent company and the court can force the parent to honor its obligation by exercising its shareholder power. And since Proview is still under effective control of its parent, Proview Shenzhen would be bound by its parent's request to transfer the trademark.
However, the parent lost control over Proview Shenzhen by the time Proview Shenzhen defaults and is now taken over by the creditors. Apple can still file a claim against the parent company (which it did in Hong Kong and won). But this time Proview Shenzhen's parent have long before lost its legal power to control Proview Shenzhen as its shareholder, thus Proview Shenzhen(and its creditors) is not legally bound in anyway to transfer the trademark. The creditors have totally legitimate reasons and legal ground to refuse the transfer.
Actually, unless I'm mistaken, that's what a "limited liability" (LTD) incorporation (which Proview Shenzhen is, according to http://proview.net/About/Global_Network.aspx) allows for. The "limited liability" bit means that you own the company, but you're only responsible for the value of your investment in the company, if creditors come after the LTD company. So the creditors can tag you for whatever value you have in the company (i.o.w whatever monies/value you've already invested in the company, as well as still-held assets of the LTD as well as the the money that was taken for the sale of the LTD's assets in the sell-off), but they can't get you for the full value of the LTD's debits.
In this specific case, the rights to the trademark were legitimately sold before creditors claimed default. That asset is rightly sold and gone. The creditors may have a claim to the portion of the money collected for the sale that pertained to the Chinese trademark rights, but not to the trademark rights themselves.
Had it been Proview Shenzhen itself, rather than its parent who entered into the trademark transfer agreement. Apple would still be in trouble.
In this scenario, as long as the trademark is not transfered (by "transfered", the Chinese law mean having your name printed on the trademark certificate), Proview Shenzhen would still own the trademark. Apple only has a contractual right to claim the trademark.
In light the undergoing bankrupcy, Apple's contractual right would as useless as any creditor's claim. Yes Proview Shenzhen owes Apple a trademark. But it also owes the banks, suppliers, employees millions of dollars . So why should Apple's claim be satisfied first?
That's when bankrupcy law come into place. Apple would have to wait until employees, and secured debts be repaid first with the monies derived from the sales of the the asset (trademark) and if lucky get a small slice as every other creditor.
Alternatevely, Apple would have to offer to repay a substantial amount of the debt to other creditors/employees etc in exchange for the trademark. So not good news either.
Proview's parent entered into a contract which purported to dispose of an asset it does not own. This is not called "legitimately sold". At this stage, no transfer or legitimate sale ever happened.
A sale has two stages. You enter into a contract with the other party agreeing to transfer your property. By this time, you owe a duty of transfering the property to the other party but before you actually hand over your property, your property is still yours and is not gone. The other party has a contractual right to require you to honour your contractual obligation but does not own the property.
Stage two is you actually hand over the property. Only by this time you lose the ownership of the property.
What happend among Apple, Proview Shenzhen, and Proview's parent is earlier than stage one. The ipad trademark is owned by Proview Shenzhen not its parent. Proview Shenzhen has neither entered into any contract on the sale of the property, nor has any contractual obligation to do so.
Since only the parent company of Proview Shenzhen entered into a contract with Apple. only that parent owes a duty to cause Proview Shenzhen to transfer the trademark.
If the transfer were to happen, it can only be realized by the parent excercing its power and legal capacity as the shareholder of Proview Shenzhen (passing a shareholder resolution to require Proview Shenzhen to proceed to transfer the trademark) to the extent permited under Proview Shenzhen's Articles of Association and China's Company Law .
If Proview Shenzhen was a company operating normally. Apple would be able to file a claim against the parent company and the court can force the parent to honor its obligation by exercising its shareholder power. And since Proview is still under effective control of its parent, Proview Shenzhen would be bound by its parent's request to transfer the trademark.
However, the parent lost control over Proview Shenzhen by the time Proview Shenzhen defaults and is now taken over by the creditors. Apple can still file a claim against the parent company (which it did in Hong Kong and won). But this time Proview Shenzhen's parent have long before lost its legal power to control Proview Shenzhen as its shareholder, thus Proview Shenzhen(and its creditors) is not legally bound in anyway to transfer the trademark. The creditors have totally legitimate reasons and legal ground to refuse the transfer.
So it seems that if the parent were to satisfy the financial obligation to the creditors ("piercing the corporate veil" as it were), then they [the creditors] would have no further claim, which would then free the parent to execute it's obligation to Apple to cause the transfer of ownership to Apple.
Do we know if a claim by Apple is sufficient to cause the parent to assume proper liability and effect this?
Not that I know, but I would assume because Apple's claim would be against actual [but not real] property encumbered in it's entirety by said claim and so ostensibly not contestable by another creditor, whereas any creditor who has a cash claim would need to wait be satisfied (to greatest extent possible) by the liquidation of unencumbered assets (and after priority obligations).
However, it's been pointed out elsewhere that there may be a further complication; Apple may not have struck a deal with the parent, but with different subsidiary of International. If that's the case, this is all a bit moot anyhow (but a fun exercise nonetheless).
The Chinese government can stop ANY manufacturing within China. The main factor is whether it is in theirr best interest to do so.
In terms of legality in USA means they can produce it inside of a country that it is not illegal, depends on the requirements China holds companies to... its not as straight forward as "its going to USA = legal" Been on that side of the fence, (trying to export a legal USA product out of a country that it was not legal).
It's common to suggest some excessive fee so a less excessive, though still excessive, fee will seem more reasonable. I don't think for a second that Proview thinks they will get anywhere near $1.6B even if they are in the right, which don't seem like the smart bet considering we know Apple licensed the iPad name from Proview already. Seems to me that the parent company misrepresented its ability to license the iPad name in China or that the Proview China is misrepresenting itself are more likely than Apple having done a half assed job with their previous deal and knew full well they didn't have the rights to the name in China despite the $55 million payout.
It was a $55,000 payout for the name originally. On the face of it, it looks like a very deliberate setup. A company in severe debt see an opportunity to swindle a rich company, register a name they think the company might use without using the name themselves, put out a phoney license, wait until it gets big, enters the Chinese market and sue like crazy.
See, I'm still pretty new to this whole situation, and I'm trying to figure out the specifics. Here is my understanding, correct me if I'm wrong:
Three years ago, Apple purchased the rights to use the 'iPad' name in a number of Asian territories from various corporations. One of those corporations is/was Proview. Apple paid Proview ~$60,000 for the iPad name. Proview's 'IPAD' was an all-in-one desktop computer which bared more than a passing resemblance to an iMac in 1999. Proview accepted the money, and agreed to forfeit their rights to the iPad name.... only they didn't. For the next three years Proview sunk further and further into debt, all the while secretly retaining legal ownership to the iPad name. With little recourse left, Proview reveals to the world that even though they cashed Apple's check, they never actually signed the paperwork, and demands that Apple pay them again for the iPad name, at a vastly inflated rate.
So what part of this isn't extortion? This isn't business as usual in China, is it?
Danny, I will assert that you are highly incorrect, in that the legal angle that you propose is misleading.
I recommend everyone else read through my post carefully, because no one on AppleInsider or the media has investigated this in much detail, or in satisfactory detail.
(Whether or not the Hong Kong courts apply to mainland China is not relevant at this stage since the information presented in Hong Kong as shown below would or should not change significantly even under whatever the mainland Chinese law is)
1a. There is only ONE person involved.
There is the counter-claim here and in the media that Proview Shenzhen is somehow removed from Proview Taiwan. This is highly incorrect. See the Hong Kong decision:
"Yang Long San, Rowell (?Yang?), a Taiwanese, is the founder of the Proview Group. He was at all material times the chairman and chief executive officer of Proview Holdings until he was adjudicated bankrupt on 2 August 2010. Other companies of the Proview Group that feature in these proceedings are Proview Electronics, a Taiwan company, Proview Shenzhen and Yoke Technology, both being Shenzhen companies. Yang was at all material times the responsible person and director of Proview Electronics. He was also the legal representative, general manager and chairman of both Proview Shenzhen and Yoke Technology and remains so despite his bankruptcy."
1b. Hence Mr. Yang is at all times the one and only person involved in this.
2a. Bankruptcy of Proview or of Mr. Yang only occurs AFTER the contract execution and AFTER Apple's request to rectify the fraudulent Proview claims.
There is the counter-claim here and in perhaps in the media that somehow Bankruptcy is an issue. However, it is not important in regards to the original agreement. See the Hong Kong decision:
"...The Written Agreement and the Country Assignments executed on 23 December 2009 expressly stated that Proview Electronics was the proprietor of the Subject Trademarks including the China Trademarks and that Proview Electronics warranted that it was the unencumbered sole owner of the Subject Trademarks including the China Trademarks. The Country Assignment pertaining to the China Trademarks (?the China Country Assignment?) also recited that Proview Electronics was the proprietor of the China Trademarks. However, after Apple had announced the launch of iPads in January 2010, it was discovered that the China Trademarks were in fact registered in the name of Proview Shenzhen. The China Country Assignment was accordingly ineffective in assigning the China Trademarks to IP Application.
"B&M found out that China Minsheng Banking Corporation had obtained an asset preservation order (?APO?) against Proview Shenzhen and that such asset preservation order had since March 2010 been registered with the Mainland Trade Mark Office (?TMO?) over the China Trademarks."
2b. Given that any reasonable bankruptcy proceedings related to Mr. Yang or Proview occur AFTER the contract agreement, therefore it has no bearing in the original agreement which is between Mr. Yang, his companies and Apple, which all occured in 2009.
3a. By your assertion, Creditors are the actual owners of the China Trademarks, more specifically, China Minsheng Banking Corporation (see 2a. above) ~ hence, Mr. Yang, Proview etc. has NO CLAIM in blocking the sale of iPads in China, let alone export. They are all ridiculous claims, by any reasonable standard, legal or otherwise. Think of it this way. Yes, the China Trademarks have not been transferred. But Proview is effectively out of the picture, right? Because the asset now belongs to China Minsheng. What right does Proview have since March 2010 over the trademarks?
3b. As such it can be asserted that Apple does not own the China Trademarks. But neither does Proview now. China Minsheng owns that asset. In what scenario does this lead to Proview making sure the authorities block iPad? Doesn't make sense, right?
3c. Danny, your angle that Apple is a creditor owed the China Trademarks does not show in any way that Apple is illegally or fraudulently using the iPad name in China. Which is the issue of Proview trying to block the use of the China Trademarks. The best Proview can hope for is to repay the creditors, as you say... But in this case, it is one creditor (China Minsheng) vs another (Apple). However, how would China Minsheng try and "sell" the China Trademark to Apple, when it already owes the China Trademark to Apple?
4a. Clear intention to cause "injury" and to defraud by Mr. Yang and Proview, beyond mere Breach of Agreement.
"Here, the conduct of all the defendants demonstrate that they have combined together with the common intention of injuring Apple and IP Application by acting in breach of the Agreement. Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang?s control, have refused to take any steps to ensure compliance with the Agreement so that the China Trademarks are properly assigned or transferred to IP Application. Instead, they attempted to exploit the situation as a business opportunity for the Proview Group by seeking an amount of US$10,000,000 from Apple."
4b. There is a huge list of intention to defraud, conspire, injure or whatever the legal terminology is. Let me summarise it briefly as such. Mr. Yang says that he owns the China Trademarks in 2009. He agrees at the end of 2009 to sell all the China Trademarks, representing all Proview companies including Proview Shenzhen. Apple announces the iPad in January 2010. Mr. Yang now claims that China Trademarks require $10million more, while refusing to acknowledge breach of contract. On top of this, China Trademarks were transferred to China Minsheng Bank in March 2011, however in May 2011 Mr. Yang et al says that they have no intention of disposing of the China Trademarks. Even more, "Proview Shenzhen had in fact lodged applications with the TMO to transfer the China Trademarks to Yoke Technology on 7 May 2010" ~ Yoke Technology is owned, you guessed, Mr. Yang himself.
4c. All evidence shows that Proview has acted to conspire, injure, in breach of contract, portray itself incorrectly, and has in fact rescinded the rights to the China Trademarks.
5a. Multiple parties "own" the China Trademarks, including Apple. Blocking Apple's use of the word iPad, let alone by Proview, is highly suspect.
5b. Let's look at who owns the China Trademarks:
"Proview Electronics warranted that it was the unencumbered sole owner of the Subject Trademarks including the China Trademarks [in 2009]"
"Apple and IP Application further complained that while acknowledging that a mistake had been made in the China Country Assignment, the Contracting Defendants refused to rectify the mistake [in early 2010]"
"China Minsheng Banking Corporation had obtained an asset preservation order (?APO?) against Proview Shenzhen and that such asset preservation order had since March 2010 been registered with the Mainland Trade Mark Office (?TMO?) over the China Trademarks"
"Proview Shenzhen had in fact lodged applications with the TMO to transfer the China Trademarks to Yoke Technology on 7 May 2010"
This is an important part too:
"On 24 May 2010, [Apple and IP Applications] instituted proceedings against Proview Shenzhen in the Shenzhen Intermediate People?s Court and filed an application for APO (asset preservation order) in respect of the China Trademarks. The application was granted on 12 June 2010 but subject to the APOs obtained by some other Mainland banks"
5c. Even in the worst case scenario, ownership of the China Trademarks is not clear. Again, what right Proview or the Creditors (as Danny, you assert) have in blocking the iPad or claiming more money from Apple, is highly dubious
Quote:
Originally Posted by dannysiu
Had it been Proview Shenzhen itself, rather than its parent who entered into the trademark transfer agreement. Apple would still be in trouble.
In this scenario, as long as the trademark is not transfered (by "transfered", the Chinese law mean having your name printed on the trademark certificate), Proview Shenzhen would still own the trademark. Apple only has a contractual right to claim the trademark.
In light the undergoing bankrupcy, Apple's contractual right would as useless as any creditor's claim. Yes Proview Shenzhen owes Apple a trademark. But it also owes the banks, suppliers, employees millions of dollars . So why should Apple's claim be satisfied first?
That's when bankrupcy law come into place. Apple would have to wait until employees, and secured debts be repaid first with the monies derived from the sales of the the asset (trademark) and if lucky get a small slice as every other creditor.
Alternatevely, Apple would have to offer to repay a substantial amount of the debt to other creditors/employees etc in exchange for the trademark. So not good news either.
Comments
This blather is unconscionable. Lower minimum wage? To what? menial assembly type people (OK, here, Prof. Peabody, may be a real case of racism.)
[...blah, blah, blah] You do not know anything about me, but I can tell you this, there is not a racist bone in my body.
You sound like a thinking person, mstone. Know your history and the future is more likely to be better.
Those who ignore or who are unaware of the mistakes of others from history are likely to repeat those mistakes, however, a person living in the past will never make a difference in the future. The solution to every complex social problem involves compromise. If you have answers for today's economic challenges, let's hear them. You can't just criticize other peoples' suggestions without presenting an alternative solution. If you do, you are part of the problem, not part of the solution.
"iPad 3" is ALREADY NEW trademark name which noone registered yet in China.
Oh that's gravy.
I'm glad you registered just for this!
So Proview sells the rights to the name, probably thinks that it didn't negotiate for enough money the first time around and now they "refuse to honor" the agreement. China isn't becoming more capitalistic, they're becoming more like organized crime.
Couldn't be further from the truth.
Had this happen in any juristiction other than China, Apple would be seriously violating trademark laws.
Facts are pretty simple, if your parent lost your custody.they have no right to sell your property. (Proview Shenzhen is bankrupt, and it is now controled by the creditors and receiver as opposed to the Taiwanese parent. Proview Shenzhen is simply not bound by the agreement entered by its parent with Apple)
Proview might want to rein in their spokesperson. Because that kind of comment sounds like they did have an agreement with Apple and it could be exactly as Apple claims. But Proview is feeling a little hurt over the issue that they undersold the trademark rights since they didn't know it was going to Apple. So they are trying to bully their way into more money.
Which is just the way to get Apple to yank iPad production out of China regardless of what the government says. And then move everything else as well.
Proview Shenzhen has every reason to seek an injunction against apple. Totally legitimate
Facts are pretty simple, if your parent lost your custody.they have no right to sell your property. (Proview Shenzhen is bankrupt, and it is now controled by the creditors and receiver as opposed to the Taiwanese parent. Proview Shenzhen is simply not bound by the agreement entered by its parent with Apple)
This is China we're talking about. This country is corrupted and Proview can buy some influential officials/judges/ministers as much as they like.
Proview is as foreign as Foxconn/Apple in China. Fact is Apple is indeed infringing the trademark Proview Shenzhen has been using for over a decade.
From legal perspective, a parent and a subsidiary are two different entities. The subsidiary will not be bound by the actions of the parent when the parent lost convtrol over him. That's why the agreement between Apple and the Proview parent is invalid when it comes to disposing someone else's assets, even if it is your son (but controled by creditors now.)
Apple can crush Proview like a rotten grape. Then, if Apple wants to, they can shift most of their final assembly production out of China. That would be a major PR win for Apple anyway and kill 2 birds with one stone. Foxconn is setting up a new 12 billion dollar factory in Brazil as we speak. And there are other places Apple can locate assembly factories.
I wonder why the Chinese government would side with Proview on this? Corruption, perhaps? If the Chinese government sides with Proview, they will spark an anti-China campaign with Apple and the rest of the world like never before.
For many years, the chinese government has shown their arrogance and disdain for foreign trademarks and intellectual property. I sincerely hope that people get angry enough and stop buying all the Chinese-made crap at Wal-mart and stop buying Chinese knock-offs of trademarked products. They really need the west to buy their crap more that the west needs to buy their crap.
Chinese government is enforcing a legitimate right. Proview Shenzhen and its parent are two dffrent entities. During the bankcrupcy procedures, Proview Shenzhen's creditors has evey right to refuse to honor the agreement its parent entered with Apple. Ask any lawyer and they would explain to you.
Say you owns a company, and your company is on the brink of bankrupcy and have a bunch of creditors chasing behind your company. The law simply will not allow you to sign a agreement and transfer all the remaining assets of your company to your friend for $1 and leave your company's creditors unpaid. And this is exactly what's happening between Proview and Apple.
Chinese government is enforcing a legitimate right. Proview Shenzhen and its parent are two dffrent entities. During the bankcrupcy procedures, Proview Shenzhen's creditors has evey right to refuse to honor the agreement its parent entered with Apple. Ask any lawyer and they would explain to you.
Say you owns a company, and your company is on the brink of bankrupcy and have a bunch of creditors chasing behind your company. The law simply will not allow you to sign a agreement and transfer all the remaining assets of your company to your friend for $1 and leave your company's creditors unpaid. And this is exactly what's happening between Proview and Apple.
Regardless of how this case plays out in court, either in favour of Apple or not, what really interests most posters here is whether Apple genuinely believes that it had secured the rights to use the iPad name on mainland China or whether Apple was aware that it hadn't. Morally, this is all that matters. Now, why don't you tell us which of those alternatives is true? I and others here will be interested to read references in support of your assertion.
Proview Shenzhen has every reason to seek an injunction against apple. Totally legitimate
Facts are pretty simple, if your parent lost your custody.they have no right to sell your property. (Proview Shenzhen is bankrupt, and it is now controled by the creditors and receiver as opposed to the Taiwanese parent. Proview Shenzhen is simply not bound by the agreement entered by its parent with Apple)
What <are> the facts in this case? I haven't actually seen many other than Proview Shenzhen won't honor the agreement that was struck between Apple and the parent company, and that Proview Shenzhen is <claiming> the parent didn't have the right to sell the trademark in China.
If the parent company was the proper owner of the trademark rights, just because if Proview Shenzhen was using the "iPad" trademark in China with their permission, that doesn't mean they [Proview Shenzhen] owned the rights, it only means that they were allowed [by the parent company] to use the trademark. But that still doesn't grant ownership, only right of use. If Proview Shenzhen was in receivership, that doesn't somehow magically transfer ownership of something they didn't own (only had a right to use) to them.
Using your metaphor (and without more facts), it actually sounds more like a case of your parents not having legal custody of you any more, selling <their> house (that you happen to be living with them in), then having you claiming to 'own' the house (because you're using it) and refusing to leave when the new owners arrive.
Can someone with more in-depth knowledge fill in the blanks here? Did the parent Proview have the legal right to sell the iPad trademark in China at the time the deal with Apple was struck (either because they had direct ownership rights to the trademark, or had the legal authority to sell Proview Shenzhen assets because of the corporate relationship)?
EDIT (correct me where I'm mistaken):
The OP's metaphor stands - with the exception that your parents sold your property <before> they lost custody, because they had the legal right to.
http://www.law.com/jsp/law/internati...=1202519585965
This is the timeline:
2000 - Proview International registers "iPad" in Europe & elsewhere
2001 - Proview Shenzhen registers "iPad" in China
2009 - Proview International sells "iPad" to IP Application Development (*1)
2010 - Proview Shenzhen defaults and assets are frozen (*2)
2010 - IP Application Development signs an agreement with Apple for use of the trademarks obtained from International
2010 - Apple starts selling "iPad"s in China
*1) The sale explicitly includes the rights held by Shenzhen in China. Shenzhen isn't in default at this point, and is a subsidiary of International. This means International has a minimum of 50% ownership of Shenzhen, and therefore <can> make the unilateral decision to sell a Shenzhen asset to a third party, being a controlling owner of the LTD company. (International owns Shenzhen, which owns the trademark - therefore, International effectively owns the trademark - or at the very least can legally decide on Shenzhen's behalf to sell an asset.)
*2) IP Application Development <already> had an inked agreement with International (who <did> have rights) to buy the trademark. The registration office "assignment" hasn't taken place yet, but ownership is already there. At this point the trademark asset doesn't belong to Shenzhen, so the court improperly allowed the inclusion of the registration when the request to freeze assets was filed. The only problem I see here is that International (as effective owner) didn't do the paperwork to re-assign the registration to IP Application Development. IP Application Development legitimately owns the rights. It's not on record at the registration office yet - but the legal ownership is already clearly settled. It's a paperwork formality. The only claims I see Shenzhen as having is whatever damages or penalties the courts allows for infringement prior to 2009, when International sold the trademark to IP Application Development. However, since Apple didn't sell an "iPad" product in China when Shenzhen still owned the rights, I don't see how they can claim infringement.
Anyone have any more (or better educated) insight on this?
Chinese government is enforcing a legitimate right. Proview Shenzhen and its parent are two dffrent entities. During the bankcrupcy procedures, Proview Shenzhen's creditors has evey right to refuse to honor the agreement its parent entered with Apple. Ask any lawyer and they would explain to you.
Say you owns a company, and your company is on the brink of bankrupcy and have a bunch of creditors chasing behind your company. The law simply will not allow you to sign a agreement and transfer all the remaining assets of your company to your friend for $1 and leave your company's creditors unpaid. And this is exactly what's happening between Proview and Apple.
Actually, unless I'm mistaken, that's what a "limited liability" (LTD) incorporation (which Proview Shenzhen is, according to http://proview.net/About/Global_Network.aspx) allows for. The "limited liability" bit means that you own the company, but you're only responsible for the value of your investment in the company, if creditors come after the LTD company. So the creditors can tag you for whatever value you have in the company (i.o.w whatever monies/value you've already invested in the company, as well as still-held assets of the LTD as well as the the money that was taken for the sale of the LTD's assets in the sell-off), but they can't get you for the full value of the LTD's debits.
In this specific case, the rights to the trademark were legitimately sold before creditors claimed default. That asset is rightly sold and gone. The creditors may have a claim to the portion of the money collected for the sale that pertained to the Chinese trademark rights, but not to the trademark rights themselves.
What <are> the facts in this case?
...
Anyone have any more (or better educated) insight on this?
The problem that I can see with your argument (which is nicely formulated), is that a court in China has apparently already sided with Proview (Shenzhen). Are proceedings or ruling in China made available to the public in such cases?
Actually, unless I'm mistaken, that's what a "limited liability" (LTD) incorporation (which Proview Shenzhen is, according to http://proview.net/About/Global_Network.aspx) allows for. The "limited liability" bit means that you own the company, but you're only responsible for the value of your investment in the company, if creditors come after the LTD company. So the creditors can tag you for whatever value you have in the company (i.o.w whatever monies/value you've already invested in the company, as well as still-held assets of the LTD as well as the the money that was taken for the sale of the LTD's assets in the sell-off), but they can't get you for the full value of the LTD's debits.
In this specific case, the rights to the trademark were legitimately sold before creditors claimed default. That asset is rightly sold and gone. The creditors may have a claim to the portion of the money collected for the sale that pertained to the Chinese trademark rights, but not to the trademark rights themselves.
This is exactly where you are wrong.
Proview's parent entered into a contract which purported to dispose of an asset it does not own. This is not called "legitimately sold". At this stage, no transfer or legitimate sale ever happened.
A sale has two stages. You enter into a contract with the other party agreeing to transfer your property. By this time, you owe a duty of transfering the property to the other party but before you actually hand over your property, your property is still yours and is not gone. The other party has a contractual right to require you to honour your contractual obligation but does not own the property.
Stage two is you actually hand over the property. Only by this time you lose the ownership of the property.
What happend among Apple, Proview Shenzhen, and Proview's parent is earlier than stage one. The ipad trademark is owned by Proview Shenzhen not its parent. Proview Shenzhen has neither entered into any contract on the sale of the property, nor has any contractual obligation to do so.
Since only the parent company of Proview Shenzhen entered into a contract with Apple. only that parent owes a duty to cause Proview Shenzhen to transfer the trademark.
If the transfer were to happen, it can only be realized by the parent excercing its power and legal capacity as the shareholder of Proview Shenzhen (passing a shareholder resolution to require Proview Shenzhen to proceed to transfer the trademark) to the extent permited under Proview Shenzhen's Articles of Association and China's Company Law .
If Proview Shenzhen was a company operating normally. Apple would be able to file a claim against the parent company and the court can force the parent to honor its obligation by exercising its shareholder power. And since Proview is still under effective control of its parent, Proview Shenzhen would be bound by its parent's request to transfer the trademark.
However, the parent lost control over Proview Shenzhen by the time Proview Shenzhen defaults and is now taken over by the creditors. Apple can still file a claim against the parent company (which it did in Hong Kong and won). But this time Proview Shenzhen's parent have long before lost its legal power to control Proview Shenzhen as its shareholder, thus Proview Shenzhen(and its creditors) is not legally bound in anyway to transfer the trademark. The creditors have totally legitimate reasons and legal ground to refuse the transfer.
Actually, unless I'm mistaken, that's what a "limited liability" (LTD) incorporation (which Proview Shenzhen is, according to http://proview.net/About/Global_Network.aspx) allows for. The "limited liability" bit means that you own the company, but you're only responsible for the value of your investment in the company, if creditors come after the LTD company. So the creditors can tag you for whatever value you have in the company (i.o.w whatever monies/value you've already invested in the company, as well as still-held assets of the LTD as well as the the money that was taken for the sale of the LTD's assets in the sell-off), but they can't get you for the full value of the LTD's debits.
In this specific case, the rights to the trademark were legitimately sold before creditors claimed default. That asset is rightly sold and gone. The creditors may have a claim to the portion of the money collected for the sale that pertained to the Chinese trademark rights, but not to the trademark rights themselves.
Had it been Proview Shenzhen itself, rather than its parent who entered into the trademark transfer agreement. Apple would still be in trouble.
In this scenario, as long as the trademark is not transfered (by "transfered", the Chinese law mean having your name printed on the trademark certificate), Proview Shenzhen would still own the trademark. Apple only has a contractual right to claim the trademark.
In light the undergoing bankrupcy, Apple's contractual right would as useless as any creditor's claim. Yes Proview Shenzhen owes Apple a trademark. But it also owes the banks, suppliers, employees millions of dollars . So why should Apple's claim be satisfied first?
That's when bankrupcy law come into place. Apple would have to wait until employees, and secured debts be repaid first with the monies derived from the sales of the the asset (trademark) and if lucky get a small slice as every other creditor.
Alternatevely, Apple would have to offer to repay a substantial amount of the debt to other creditors/employees etc in exchange for the trademark. So not good news either.
This is exactly where you are wrong.
Proview's parent entered into a contract which purported to dispose of an asset it does not own. This is not called "legitimately sold". At this stage, no transfer or legitimate sale ever happened.
A sale has two stages. You enter into a contract with the other party agreeing to transfer your property. By this time, you owe a duty of transfering the property to the other party but before you actually hand over your property, your property is still yours and is not gone. The other party has a contractual right to require you to honour your contractual obligation but does not own the property.
Stage two is you actually hand over the property. Only by this time you lose the ownership of the property.
What happend among Apple, Proview Shenzhen, and Proview's parent is earlier than stage one. The ipad trademark is owned by Proview Shenzhen not its parent. Proview Shenzhen has neither entered into any contract on the sale of the property, nor has any contractual obligation to do so.
Since only the parent company of Proview Shenzhen entered into a contract with Apple. only that parent owes a duty to cause Proview Shenzhen to transfer the trademark.
If the transfer were to happen, it can only be realized by the parent excercing its power and legal capacity as the shareholder of Proview Shenzhen (passing a shareholder resolution to require Proview Shenzhen to proceed to transfer the trademark) to the extent permited under Proview Shenzhen's Articles of Association and China's Company Law .
If Proview Shenzhen was a company operating normally. Apple would be able to file a claim against the parent company and the court can force the parent to honor its obligation by exercising its shareholder power. And since Proview is still under effective control of its parent, Proview Shenzhen would be bound by its parent's request to transfer the trademark.
However, the parent lost control over Proview Shenzhen by the time Proview Shenzhen defaults and is now taken over by the creditors. Apple can still file a claim against the parent company (which it did in Hong Kong and won). But this time Proview Shenzhen's parent have long before lost its legal power to control Proview Shenzhen as its shareholder, thus Proview Shenzhen(and its creditors) is not legally bound in anyway to transfer the trademark. The creditors have totally legitimate reasons and legal ground to refuse the transfer.
So it seems that if the parent were to satisfy the financial obligation to the creditors ("piercing the corporate veil" as it were), then they [the creditors] would have no further claim, which would then free the parent to execute it's obligation to Apple to cause the transfer of ownership to Apple.
Do we know if a claim by Apple is sufficient to cause the parent to assume proper liability and effect this?
So why should Apple's claim be satisfied first?.
Not that I know, but I would assume because Apple's claim would be against actual [but not real] property encumbered in it's entirety by said claim and so ostensibly not contestable by another creditor, whereas any creditor who has a cash claim would need to wait be satisfied (to greatest extent possible) by the liquidation of unencumbered assets (and after priority obligations).
However, it's been pointed out elsewhere that there may be a further complication; Apple may not have struck a deal with the parent, but with different subsidiary of International. If that's the case, this is all a bit moot anyhow (but a fun exercise nonetheless).
The difference is that I'm right and you're not.
but youre not.
The Chinese government can stop ANY manufacturing within China. The main factor is whether it is in theirr best interest to do so.
In terms of legality in USA means they can produce it inside of a country that it is not illegal, depends on the requirements China holds companies to... its not as straight forward as "its going to USA = legal" Been on that side of the fence, (trying to export a legal USA product out of a country that it was not legal).
It's common to suggest some excessive fee so a less excessive, though still excessive, fee will seem more reasonable. I don't think for a second that Proview thinks they will get anywhere near $1.6B even if they are in the right, which don't seem like the smart bet considering we know Apple licensed the iPad name from Proview already. Seems to me that the parent company misrepresented its ability to license the iPad name in China or that the Proview China is misrepresenting itself are more likely than Apple having done a half assed job with their previous deal and knew full well they didn't have the rights to the name in China despite the $55 million payout.
It was a $55,000 payout for the name originally. On the face of it, it looks like a very deliberate setup. A company in severe debt see an opportunity to swindle a rich company, register a name they think the company might use without using the name themselves, put out a phoney license, wait until it gets big, enters the Chinese market and sue like crazy.
You keep thinking that.!
You are also welcome to dream
Three years ago, Apple purchased the rights to use the 'iPad' name in a number of Asian territories from various corporations. One of those corporations is/was Proview. Apple paid Proview ~$60,000 for the iPad name. Proview's 'IPAD' was an all-in-one desktop computer which bared more than a passing resemblance to an iMac in 1999. Proview accepted the money, and agreed to forfeit their rights to the iPad name.... only they didn't. For the next three years Proview sunk further and further into debt, all the while secretly retaining legal ownership to the iPad name. With little recourse left, Proview reveals to the world that even though they cashed Apple's check, they never actually signed the paperwork, and demands that Apple pay them again for the iPad name, at a vastly inflated rate.
So what part of this isn't extortion? This isn't business as usual in China, is it?
I recommend everyone else read through my post carefully, because no one on AppleInsider or the media has investigated this in much detail, or in satisfactory detail.
On the basis of the Hong Kong decision:
http://www.hklii.hk/cgi-bin/sinodisp...2011/1375.html
(Whether or not the Hong Kong courts apply to mainland China is not relevant at this stage since the information presented in Hong Kong as shown below would or should not change significantly even under whatever the mainland Chinese law is)
1a. There is only ONE person involved.
There is the counter-claim here and in the media that Proview Shenzhen is somehow removed from Proview Taiwan. This is highly incorrect. See the Hong Kong decision:
"Yang Long San, Rowell (?Yang?), a Taiwanese, is the founder of the Proview Group. He was at all material times the chairman and chief executive officer of Proview Holdings until he was adjudicated bankrupt on 2 August 2010. Other companies of the Proview Group that feature in these proceedings are Proview Electronics, a Taiwan company, Proview Shenzhen and Yoke Technology, both being Shenzhen companies. Yang was at all material times the responsible person and director of Proview Electronics. He was also the legal representative, general manager and chairman of both Proview Shenzhen and Yoke Technology and remains so despite his bankruptcy."
1b. Hence Mr. Yang is at all times the one and only person involved in this.
2a. Bankruptcy of Proview or of Mr. Yang only occurs AFTER the contract execution and AFTER Apple's request to rectify the fraudulent Proview claims.
There is the counter-claim here and in perhaps in the media that somehow Bankruptcy is an issue. However, it is not important in regards to the original agreement. See the Hong Kong decision:
"...The Written Agreement and the Country Assignments executed on 23 December 2009 expressly stated that Proview Electronics was the proprietor of the Subject Trademarks including the China Trademarks and that Proview Electronics warranted that it was the unencumbered sole owner of the Subject Trademarks including the China Trademarks. The Country Assignment pertaining to the China Trademarks (?the China Country Assignment?) also recited that Proview Electronics was the proprietor of the China Trademarks. However, after Apple had announced the launch of iPads in January 2010, it was discovered that the China Trademarks were in fact registered in the name of Proview Shenzhen. The China Country Assignment was accordingly ineffective in assigning the China Trademarks to IP Application.
"B&M found out that China Minsheng Banking Corporation had obtained an asset preservation order (?APO?) against Proview Shenzhen and that such asset preservation order had since March 2010 been registered with the Mainland Trade Mark Office (?TMO?) over the China Trademarks."
2b. Given that any reasonable bankruptcy proceedings related to Mr. Yang or Proview occur AFTER the contract agreement, therefore it has no bearing in the original agreement which is between Mr. Yang, his companies and Apple, which all occured in 2009.
3a. By your assertion, Creditors are the actual owners of the China Trademarks, more specifically, China Minsheng Banking Corporation (see 2a. above) ~ hence, Mr. Yang, Proview etc. has NO CLAIM in blocking the sale of iPads in China, let alone export. They are all ridiculous claims, by any reasonable standard, legal or otherwise. Think of it this way. Yes, the China Trademarks have not been transferred. But Proview is effectively out of the picture, right? Because the asset now belongs to China Minsheng. What right does Proview have since March 2010 over the trademarks?
3b. As such it can be asserted that Apple does not own the China Trademarks. But neither does Proview now. China Minsheng owns that asset. In what scenario does this lead to Proview making sure the authorities block iPad? Doesn't make sense, right?
3c. Danny, your angle that Apple is a creditor owed the China Trademarks does not show in any way that Apple is illegally or fraudulently using the iPad name in China. Which is the issue of Proview trying to block the use of the China Trademarks. The best Proview can hope for is to repay the creditors, as you say... But in this case, it is one creditor (China Minsheng) vs another (Apple). However, how would China Minsheng try and "sell" the China Trademark to Apple, when it already owes the China Trademark to Apple?
4a. Clear intention to cause "injury" and to defraud by Mr. Yang and Proview, beyond mere Breach of Agreement.
"Here, the conduct of all the defendants demonstrate that they have combined together with the common intention of injuring Apple and IP Application by acting in breach of the Agreement. Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang?s control, have refused to take any steps to ensure compliance with the Agreement so that the China Trademarks are properly assigned or transferred to IP Application. Instead, they attempted to exploit the situation as a business opportunity for the Proview Group by seeking an amount of US$10,000,000 from Apple."
4b. There is a huge list of intention to defraud, conspire, injure or whatever the legal terminology is. Let me summarise it briefly as such. Mr. Yang says that he owns the China Trademarks in 2009. He agrees at the end of 2009 to sell all the China Trademarks, representing all Proview companies including Proview Shenzhen. Apple announces the iPad in January 2010. Mr. Yang now claims that China Trademarks require $10million more, while refusing to acknowledge breach of contract. On top of this, China Trademarks were transferred to China Minsheng Bank in March 2011, however in May 2011 Mr. Yang et al says that they have no intention of disposing of the China Trademarks. Even more, "Proview Shenzhen had in fact lodged applications with the TMO to transfer the China Trademarks to Yoke Technology on 7 May 2010" ~ Yoke Technology is owned, you guessed, Mr. Yang himself.
4c. All evidence shows that Proview has acted to conspire, injure, in breach of contract, portray itself incorrectly, and has in fact rescinded the rights to the China Trademarks.
5a. Multiple parties "own" the China Trademarks, including Apple. Blocking Apple's use of the word iPad, let alone by Proview, is highly suspect.
5b. Let's look at who owns the China Trademarks:
"Proview Electronics warranted that it was the unencumbered sole owner of the Subject Trademarks including the China Trademarks [in 2009]"
"Apple and IP Application further complained that while acknowledging that a mistake had been made in the China Country Assignment, the Contracting Defendants refused to rectify the mistake [in early 2010]"
"China Minsheng Banking Corporation had obtained an asset preservation order (?APO?) against Proview Shenzhen and that such asset preservation order had since March 2010 been registered with the Mainland Trade Mark Office (?TMO?) over the China Trademarks"
"Proview Shenzhen had in fact lodged applications with the TMO to transfer the China Trademarks to Yoke Technology on 7 May 2010"
This is an important part too:
"On 24 May 2010, [Apple and IP Applications] instituted proceedings against Proview Shenzhen in the Shenzhen Intermediate People?s Court and filed an application for APO (asset preservation order) in respect of the China Trademarks. The application was granted on 12 June 2010 but subject to the APOs obtained by some other Mainland banks"
5c. Even in the worst case scenario, ownership of the China Trademarks is not clear. Again, what right Proview or the Creditors (as Danny, you assert) have in blocking the iPad or claiming more money from Apple, is highly dubious
Had it been Proview Shenzhen itself, rather than its parent who entered into the trademark transfer agreement. Apple would still be in trouble.
In this scenario, as long as the trademark is not transfered (by "transfered", the Chinese law mean having your name printed on the trademark certificate), Proview Shenzhen would still own the trademark. Apple only has a contractual right to claim the trademark.
In light the undergoing bankrupcy, Apple's contractual right would as useless as any creditor's claim. Yes Proview Shenzhen owes Apple a trademark. But it also owes the banks, suppliers, employees millions of dollars . So why should Apple's claim be satisfied first?
That's when bankrupcy law come into place. Apple would have to wait until employees, and secured debts be repaid first with the monies derived from the sales of the the asset (trademark) and if lucky get a small slice as every other creditor.
Alternatevely, Apple would have to offer to repay a substantial amount of the debt to other creditors/employees etc in exchange for the trademark. So not good news either.