Apple tells court banning iPad sales would 'hurt China's national interest'

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  • Quote:
    Originally Posted by austingaijin View Post


    Since you seem to be following this rather closely, I'm curious what your personal opinion is about whether Apple owns the trademarks (whether they were transferred by Proview or not).



    It seems to me, and I am not a legal expert by any means, that Yang was in fact in direct control of all Proview's subsidiaries, and that assertion was also made by the Hong Kong court:



    "Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang's control, have refused to take any steps to ensure compliance ..." and "as the chairman and chief executive officer of Proview Holdings and the responsible person and director of Proview Electronics as the legal representative, general manager, and chairman of both Proview Shenzhen and Yoke Technology, he had at the material time management and control over them;"



    The fact that the emails from Proview's Legal Department negotiating the deal contain the footer "PROVIEW TECHNOLOGY (SHENZHEN) CO., LTD" and Shenzhen address, at least to me, imply that Proview Shenzhen was driving the deal from their side.



    In my opinion, I feel that Proview (in all of it's manifestations) sold the trademark to Apple (visa vie IP Applications) but then failed to execute the paperwork to actually execute the transfer. Again, I'm curious as to what your opinion is having read (presumably) the same documents I have.





    It seems like fraud or mistake to me. It seems that there was a meeting of the minds that Apple would acquire all the Proview trademarks, including China.



    But they didn't, because they didn't deal with the correct company. That might rise to the level of legal malpractice.



    So we have an equitable situation in Apple's favor, combined with Apple not in fact signing any contract with the trademark's owner. The second half is a legal argument, as opposed to an equitable one.



    I come down on the side of fraud or mistake. I think that the court should order the registry to change the official record to show that Apple owns the name but only if the 3 different Proview companies have basically the same creditor structure. This is the "Proview's all the same one guy" argument.



    If the 3 companies are NOT controlled by the same creditors, it would not be fair to the creditors of the Schenzen company to let the trademark be transferred. That would favor the Taiwan creditors.



    If taking the equitable route would serve to hurt some creditors while helping others, I'd take the purely legalistic route and rely on the fact that Proview Schenzen was the registered owner, and Proview Schenzen never signed any sales contract.





    But I think that this will be settled. The terms will be confidential, but will likely include some sort of payment from Apple to the Chinese Proview, combined with letting the Taiwan company off the hook for their blatant misrepresentation in the contract that they owned the rights in China.
  • jragostajragosta Posts: 10,473member
    Quote:
    Originally Posted by I am a Zither Zather Zuzz View Post


    It seems like fraud or mistake to me. It seems that there was a meeting of the minds that Apple would acquire all the Proview trademarks, including China.



    But they didn't, because they didn't deal with the correct company. That might rise to the level of legal malpractice.



    So we have an equitable situation in Apple's favor, combined with Apple not in fact signing any contract with the trademark's owner. The second half is a legal argument, as opposed to an equitable one.



    I come down on the side of fraud or mistake. I think that the court should order the registry to change the official record to show that Apple owns the name but only if the 3 different Proview companies have basically the same creditor structure. This is the "Proview's all the same one guy" argument.



    If the 3 companies are NOT controlled by the same creditors, it would not be fair to the creditors of the Schenzen company to let the trademark be transferred. That would favor the Taiwan creditors.



    If taking the equitable route would serve to hurt some creditors while helping others, I'd take the purely legalistic route and rely on the fact that Proview Schenzen was the registered owner, and Proview Schenzen never signed any sales contract.





    But I think that this will be settled. The terms will be confidential, but will likely include some sort of payment from Apple to the Chinese Proview, combined with letting the Taiwan company off the hook for their blatant misrepresentation in the contract that they owned the rights in China.



    Once again, you are completely ignoring the Hong Kong decision and making things up as you go along.



    It also doesn't matter if the three Proviews have the same creditors. If Yang had the authority to make such a decision for all three companies and if there were no liens on the trademark at the time of its transfer, then the transfer was legal - regardless of who might have owed money to who.
  • rbryanhrbryanh Posts: 263member
    Even though it's a ridiculous issue involving a crap company and a heinous dictatorship, it's still kind of fun watching an American corporation deal with a government that can't be acquired quite as easily as buying US Congressmen a six-pack at a time.



    Different carrot, new stick? It must be terribly confusing.
  • sunilramansunilraman Posts: 8,133member
    Quote:
    Originally Posted by I am a Zither Zather Zuzz View Post


    Weak. Very weak.



    What happenend to "We bought it fair and square"?



    What happened to "Look at these emails"?



    Right, because clearly in court a lawyer only can only say two sentences.



    Quote:
    Originally Posted by austingaijin View Post


    Since you seem to be following this rather closely, I'm curious what your personal opinion is about whether Apple owns the trademarks (whether they were transferred by Proview or not).



    It seems to me, and I am not a legal expert by any means, that Yang was in fact in direct control of all Proview's subsidiaries, and that assertion was also made by the Hong Kong court:



    "Proview Holdings, Proview Electronics and Proview Shenzhen, all clearly under Yang's control, have refused to take any steps to ensure compliance ..." and "as the chairman and chief executive officer of Proview Holdings and the responsible person and director of Proview Electronics as the legal representative, general manager, and chairman of both Proview Shenzhen and Yoke Technology, he had at the material time management and control over them;"



    The fact that the emails from Proview's Legal Department negotiating the deal contain the footer "PROVIEW TECHNOLOGY (SHENZHEN) CO., LTD" and Shenzhen address, at least to me, imply that Proview Shenzhen was driving the deal from their side.



    In my opinion, I feel that Proview (in all of it's manifestations) sold the trademark to Apple (visa vie IP Applications) but then failed to execute the paperwork to actually execute the transfer. Again, I'm curious as to what your opinion is having read (presumably) the same documents I have.



    I would just like to point out we've given the above to various posters (who don't believe the above) multiple times.



    In any case I would like to post this reply from another poster (DS) that for some reason PM'ed me, but in light of the content I think it's okay to repost extracts here, it's interesting and addresses your questions. While the arguments are well-constructed, I feel that they focus on technicalities instead of the whole picture.



    Quote:
    Originally Posted by DS


    - Yang is not a party to the agreement. He signed his name but he signed the name only in his capacity as the legal representative of the entity called Proview Electronics. An act made by this entity will neither be legally binding on himself, nor the other entity called Shenzhen Proview, despite he also serves as the representative, unless Apple can prove the latter authorized Proview Electronics to do so.



    -Before the actual transfer (to complete a transfer, you have to be granted with a trademark certificate with your own name on it ), the owner is still Proview Shenzhen. Even if there was a binding contract between Proview Shenzhen and Apple, before the transfer, Apple only has a contractual right to claim the trademark and but is still not the owner. The actual contract, however, is very likely to be held not binding given that Proview Electronics may be deemed to lack the apparent authority to enter into a contract on behalf of Proview Shenzhen. Proview Shenzhen as the real owner, can thus request law enforcement authority to halt sales of infringement products.



    -These [emails] may be real. But Apple has to prove it, otherwise they won't be admitted as evidence. If I am an random guy working for this company and have a corporate Email account. I can forge an Email signature and claim that I am the chief operating officer and execute contracts. If the other company sue my company, these contracts will not be binding, unless they can prove they actually examined an authorization letter from my company which led them believe I have the authority. Apple is unable to submit any evidence other than the emails themselves, which, according to the court ruling, bear a disclaimer that it cannot be used as formal contract



    -If Apple can't prove the contract is binding on Proview Shenzhen. Proview Shenzhe remains as the owner and can sue Apple for infringement, and can block sales and exports of iPads...etc (the latter measure against infringement was the result of long term effort and lobby by western companies )



    -...creditors do not bear any the burden of proof. Apple is the one who initiated the lawsuit to claim the iPad trademark, and Apple alone bears the burden of proof that it purchased the trademark from someone with the authority to do so, since all public information shows the owner is someone else



  • sunilramansunilraman Posts: 8,133member
    Quote:
    Originally Posted by rbryanh View Post


    Even though it's a ridiculous issue involving a crap company and a heinous dictatorship, it's still kind of fun watching an American corporation deal with a government that can't be acquired quite as easily as buying US Congressmen a six-pack at a time.



    Different carrot, new stick… It must be terribly confusing.



    Yup... In Asia instead of hookers for free they want iPhones, Macs and iPads for free. Also, buying a judge or public authority doesn't guarantee they'll "go your way". I've spoken to nightclub owners in Kuala Lumpur, one of them left to go to a different city because he'd bribe the officials and they'd still randomly raid the club. In the new city where he has his club, he's got a nice spot for the officials to chill. Also so that he can keep an eye on them, they wouldn't raid a nightclub they're not supposed to be at!



    Ah, corruption, what a foul siren thou art.
  • Quote:
    Originally Posted by jragosta View Post


    Once again, you are completely ignoring the Hong Kong decision and making things up as you go along.



    It also doesn't matter if the three Proviews have the same creditors. If Yang had the authority to make such a decision for all three companies and if there were no liens on the trademark at the time of its transfer, then the transfer was legal - regardless of who might have owed money to who.





    YOu may think that I ignored the Hong Kong decision, but tha would indicate that you missed the part where I said I thought that there was fraud or mistake. Likely you don't realize the underlying rationale behind what the judge said - or why he said it.



    And none of us know what the ownership structure was of the 3 companies. Or what it is now. Or what authority "the one guy" had. You yourself seem to concede that the trademarks may have had been encumbered at the time of transfer.



    No court has evetr reached a final decision that Apple owns the trademark in China. At this point in time, it is owned by Proview Schenzen, and they never signed any document transferring it.



    If the Chinese court believes both that Apple got snookered, and that they should not be blamed for their failure to confirm ownership on the pubilc registry, THEN will order that the mark be transferred form the Schenzen company to Apple. As of now, it is owned by Schenzen and its creditors.
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