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.
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 Yangs 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 Peoples 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
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.