Chinese iPad Trademark Battle Hits California Court 119
judgecorp writes "The Chinese company Proview is taking its trademark case against Apple's iPad to the Californian Courts. The company acknowledges it sold the IPAD name to Apple, but denies Apple has rights in China, and has accused Apple of underhand tactics." Says the article: "Any kind of ban in China would obviously be a major headache for Apple, since that is where most of the iPads are manufactured. If Proview is successful, it would effectively stop worldwide distribution of the tablet, and delay the launch of the iPad 3."
Proview is the Dissed Wife (Score:5, Interesting)
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Wait, who grew larger than their contractors now?
Those companies have a *lot* of employees, but when most of your employees make less than $300 a month that doesn't really make you "larger". In fact, that's kind of the point of why their contractors contract them, to outsource labor that would practically be indentured service in the parent company's home country...
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I think saying it would be practically indentured service is putting it too mildly. When they speak of how when Apple made a change shortly before product launch and the factory supervisors went around waking up the workers in the on site housing in the middle of the night giving them some tea and sending them to the factory floor to begin retooling in the wee hours of the am, that isn't the sort of treatment an indentured servant is subject to, that is the way you treat slave labor.
Ok you wouldn't give sla
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I think saying it would be practically indentured service is putting it too mildly. When they speak of how when Apple made a change shortly before product launch and the factory supervisors went around waking up the workers in the on site housing in the middle of the night giving them some tea and sending them to the factory floor to begin retooling in the wee hours of the am, that isn't the sort of treatment an indentured servant is subject to, that is the way you treat slave labor.
Ok you wouldn't give slaves tea first, but other than that there is little difference that I can see.
Your definitions of indenture and slavery are pretty funny. That is how you'd treat an indenture servant, you wake up anytime to work anywhere you want/need them. You feed them and pay a nominal fee, but they do as you command. Take the tea and the nominal salary and then you have slavery. It is no little difference even if argumentative eyes cannot see it.
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Traditionally the major difference between an indentured servant and a slave is that the indenture only lasted a certain amount of time. And you were no supposed to act in such a way as to permanently damage them. (But "damage" was subject to argument, and, as always, the courts tended to side with the wealthy party.)
N.B.: Slavery also came in lots of gradations. E.g., Roman slaves could own property, and even sometimes buy their own freedom. This probably changed from time to time, and you didn't need
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I think saying it would be practically indentured service is putting it too mildly. When they speak of how when Apple made a change shortly before product launch and the factory supervisors went around waking up the workers in the on site housing in the middle of the night giving them some tea and sending them to the factory floor to begin retooling in the wee hours of the am, that isn't the sort of treatment an indentured servant is subject to, that is the way you treat slave labor.
Ok you wouldn't give slaves tea first, but other than that there is little difference that I can see.
Not to say that they have the greatest of times over there, I have some measure of direct information this subject, however there is a huge difference between "low pay for long hours" and "slavery". Words mean something. Don't abuse them.
You seem to be applying your Western worldview to a situation in which it doesn't apply. :-)
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I have never heard of any metric of company size where worker income played any role.
Same with number of employees - useless. It's all about profit and market cap, moron. And Apple's is currently #1 in the world at that.
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Re:Proview is the Dissed Wife (Score:4, Informative)
I don't know - are you implying that Apple stole the IP?
They bought the rights to the trademark, and only later (years after the deal) has the original owner (who had full knowledge and participation in the original deal) decided that the rights don't cover China after all, right about the time when they're going through financial difficulty and need cash urgently. It's very convenient.
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Depends on how you're measuring it. Since at the moment there is at least one court in China that has decided that Apple is in the wrong, this is a very strong indication that Apple used "intellectual property" over there illegally, i.e. stole it.
If and when this decision is reversed, I'll review my opinion on the matter ;)
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Well, the story is pretty cut and dried - they bought the worldwide rights, and Proview's parent company signed off on that. Now they don't believe China is covered under "worldwide".
Or rather, they don't consider that the subsidiary that sold the trademark to Apple's shell company had the authorisation to sell the Chinese rights, despite the parent being party to, and signing, the deal.
Either way, it's something of a desperate grab, since they (Proview) have also already lost a court case on this in Hong K
wrong argument (Score:2)
Or rather, they don't consider that the subsidiary that sold the trademark to Apple's shell company had the authorisation to sell the Chinese rights, despite the parent being party to, and signing, the deal.
This is not the argument in the U.S. case, which appears to be based on whether Apple fraudulently obtained the trademark by using a fictitious company. I have no idea how the courts in California treat something like that - techcrunch.com says "If true, this is a fairly serious offense, and Apple’s ownership of the trademark could be overturned." source [techcrunch.com]
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In which case, pretty much every large company is in violation - shell companies for purchases are extremely common and have been for many, many years.
It's a front line tactic for disguising your plans from competitors and the media. It's also perfectly legal.
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I'm not saying the legal system of the UK, France etc are perfect and scrupulously honest, but I wouldn't kick a dog up the arse on the say-so of a fucking Chinese court.
They're not much better than the East Texans.
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You claimed that a Chinese court says X as incontrovertible proof of X. Not only is that an argument from authority, it's an argument from a known corrupt authority.
That's like saying that 2 + 2 = 5, because the only calculators we have are faulty and they say so.
And no, they don't have the last word. The rest of the world aren't bound by their decision.
So just change the iPad's name (Score:2)
Not that big of a deal
Lawyers (Score:4, Insightful)
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Re:Lawyers (Score:5, Informative)
Re:Lawyers (Score:4, Informative)
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Because if you knew anything about this situation, you wouldn't be so quick to judge. Facts not in dispute:
What is in dispute: Since Apple used a shell company, Proview says the sale is null and void. I don't know if the contract stipulates Proview had to know the buyer was or if Chinese law has clauses that can invalidate a co
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That's only here in the US. In China, where they are also suing Apple, they are claiming that a subsidiary of theirs (a Proview subsidiary) sold the rights to iPad only for a single area within China, and did so without the knowledge or permission of headquarters.
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If a subsidiary sold the rights that's up to the court. Some courts hold that a company must abide by contracts by subsidiaries. If I make a contract with a subsidiary to buy 1000 units, the parent company must honor it even if I bought the units at below cost. From Apple's viewpoint, they believed that they bought a legitimate trademark.
So long as said contracts are done with the company's approval. In most cases, subsidiaries do not have free reign and must operate on a contractual basis with the parent company.
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So long as said contracts are done with the company's approval. In most cases, subsidiaries do not have free reign and must operate on a contractual basis with the parent company.
In this case, both companies had the same CEO. And Apple has email evidence that the subsidiary agreed to the sale, which wasn't shown in the first court case in China.
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If the subsidary sold it, and the subsidary is wholy owned by the main company, then its the main company. The main company has to wear it, because *it* decided to sell it. Its of no interest to the buyer the internal mechanics or decision making processes of a company.
Its like if an employee of a company buys something stupid in the companys name. The company might hate it, but its anger has to be directed at the employee, not the seller. The same goes the other way around.
Contracts and all that.
Re:Lawyers (Score:5, Informative)
Proview Electronics, a subsidiary of Proview International Holdings, agreed to sell the global iPad trademark in 2006. The rights were sold to a company called IP Application Development (‘IPAD’), for $55,104. The contracts were drawn up by Apple's legal team, listing all trademarks including the one for China, the list was supplied by Proview Electronics (taiwan).
In 2010, Proview Shenzhen (also a subsidiary of Proview International Holdings) began the process of suing Apple for trademark infringement over the ‘iPad’ brand. Proview Taiwan did not own the China trademark, Proview Shenzhen did and not sign over the rights to Proview Taiwan (which had no right to sell it) and did not enter into a contract with Apple to sell it.
Apple claim a mistake was made when the contract was drawn up listing the Trademark as owned by Taiwan but the chairman of both companies was the same person and was fully aware that the China trademark was included and gave permission to sell it, they also claim that they dealt with Shenzhen (it was the Proview Shenzhen people that told Apple Taiwan owned the trademarks).
Apple has had a couple of minor victories in Hong Kong and Taiwan that allows them to keep using the name till the ownership is dicided.
Apple’s own case against Proview that the company was infringing on its trademark with their own product was rejected at the end of last year by a court in Shenzen. Apple is appealing this decision.
The lawyer involved in the assignment of rights from Proview to Apple Inc didn't check the details deed of Assignment correctly and the trademark rights in China were not assigned.
I believe the owner's eyes lit up when he saw that Apple was the real purchaser of the name and is taking full advantage of "buyer beware".
Another twist is apparently Apple's shell company lawyers emailed Proview stipulating that the trademark will not be used in competition with Proview, it was needed only because it was the company name. Apple are not denying this, merely saying it doesn't matter what the lawyers said [reuters.com] - this is part of the Proview lawsuit recently filed in the U.S.
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Over on allthingsD they have the contracts for everything available for download. China is clearly listed in the list of marks being transferred. It may be that Taiwan did not, in fact, own the rights to the mark in China, however, the legal consul handling the sale was from the Shenzen office, so it's going to be pretty hard for Proview to argue that Taiwan was going rogue in selling the Chinese rights.
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The fact Apple used a shell company would technically give them some room to manouver in the US but not neccessarily in China.
Additional information - apparently the company was in receivership as of March 2009 so the directors could not sell any assets without the approval of it's creditors [bloomberg.com] (the documents provided by Apple show dates of November and December 2009). If this is true, the best Apple could realistically hope for imo is for the director to be convicted of defraudin
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Yes it is listed, Proview doesn't have to argue rogue anything, where the legal counsel is from is irrelevant as far as I can see - unless the legal counsel had the power to authorise a sale from Shenzhen.
Usually an officer of a company has the legal authority to sell assets of the company, and the general consul is the chief legal officer. Keep in mind the only thing that matters is if someone legally able to sell the mark authorized the sale. It doesn't matter of the CEO didn't want to sell, or anyone else for that matter, all that matters is that someone legally able to sell the mark signed off on the contract. If the general consul sold the mark without authorization from the rest of the company, the com
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Usually an officer of a company has the legal authority to sell assets of the company, and the general consul is the chief legal officer. Keep in mind the only thing that matters is if someone legally able to sell the mark authorized the sale. It doesn't matter of the CEO didn't want to sell, or anyone else for that matter, all that matters is that someone legally able to sell the mark signed off on the contract. If the general consul sold the mark without authorization from the rest of the company, the company can sue the legal consul or fire him, but the contract transferring the mark is completely valid.
Usually is not always, in this particular case it appears the general consul that signed the document is of the Taiwan company [decryptedtech.com].
This case is also complicated by the possible twist that the Shenzhen company was in the hands of the receivers from March 2009 - sale of assets is not allowed without the approval of the creditors (prevent asset stripping) - see link in one of my previous posts.
That's also pretty dicey for Proview to prove, since the iPad they developed is basically a first-gen iMac knockoff. They'd have to prove that a CRT based desktop computer (developed in 1998) competes in the same market as an LCD touchscreen tablet.
Then Apple can sue them and have the product removed from sale. That line does not help Apple Inc with the charge that t
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Usually is not always, in this particular case it appears the general consul that signed the document is of the Taiwan company [decryptedtech.com].
Erm - that's not what his business card says."Ray Mai - Legal Department - Proview Technology (Shenzen) Co. Ltd" then lists the the address of the company in Shenzen, China. That's Proview Technology, not Proview Electronics. Where in the documents does it say that he's the consul for the Taiwanese branch?
This case is also complicated by the possible twist that the Shenzhen company was in the hands of the receivers from March 2009 - sale of assets is not allowed without the approval of the creditors (prevent asset stripping) - see link in one of my previous posts.
That's a good point. However, in that case, the creditors can go after Proview for illegally selling something. Proview doesn't have standing. A valid contract was put together and the property was sold.
Then Apple can sue them and have the product removed from sale. That line does not help Apple Inc with the charge that they undertook not to use the name on a competing product (on email apparently - I use "apparently" because I haven't sighted the email).
A
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This case is also complicated by the possible twist that the Shenzhen company was in the hands of the receivers from March 2009 - sale of assets is not allowed without the approval of the creditors (prevent asset stripping) - see link in one of my previous posts.
That's a good point. However, in that case, the creditors can go after Proview for illegally selling something. Proview doesn't have standing. A valid contract was put together and the property was sold.
But you can't sell something you don't have the right to sell. That's a very basic feature of commercial law. Was the particular transaction in question valid? No idea. Let the court (or rather courts in several jurisdictions; this is complicated!) figure this out.
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The courts will also decide if Apple Inc were deceptive and broke their end of the contract by putting a competing product on the market despite an undertaking by their legal team that they wouldn't.
Let's ignore everything else for a second - "competing product"? Can you name any Proview products the iPad competes with?
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So Proview lawyers are bad for lying about ownership, but Apple lawyers are OK for lying about the non-compete.
Regardless of either parties' merits, lying lawyers are making it possible for more lawyers to make even more money. Sounds like a good ruse to me!
Maybe the original lawyers used a shell company...
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I think it's pretty much decided anyway though, both American and Chinese courts are very biased to companies that stem from and are based in their respective nations, if Proview can't win in China, it doesn't stand a chance in hell in the US so the outcome is pretty clear at this point anyway - rightly or wrongly, I'd say Proview has lost.
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... For example, Disney was able to build DisneyWorld in Orlando by securing the land rights quietly otherwise if people knew a major corporation was buying the land, they would have raised their prices.
You sure it wasn't that if people knew Disney want to make a theme park in their town, they might oppose it?
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Translation (Score:2, Informative)
Translation: Look, we know we sold you the trademark and you legally have the right to use it and all but we're failing as a company, about to be de-listed from the stock exchange and _REALLY_ need the money so would you just shut the hell up and hand over some cash.
Yeah, a failing business certainly makes companies pull some stupid, desperate stunts...
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from what I've read already (Score:5, Insightful)
Apple has a long-standing tactic of creating shells to do their brand and part buying, to make it difficult for the rumor mills and competitors to figure out what Apple is up to. And it sounds like they're complaining that they sold the iPad name to a company they didn't realize was buying for Apple.. (otherwise they'd have no doubt have tried to charge them more for it)
Too bad. I have no pity for people that like to scheme with "you have more money, so I'm going to charge you more!" getting beat at their own game. These people are only upset at themselves for not recognizing the value of what they were selling, and want someone to cover their loss as a result.
This is no different than a buyer trying to go after a seller for overcharging them for something after they realize they paid too much for it. Just the shoe's on the other foot.
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Agreed. Either the trademark was worth $50,000 to you or it wasn't. It should not matter who was buying it. Nor is there anything illegal about creating a shell company to do acquisitions like this.
They are trying to claim that they were told the name wouldn't be used in a similar market, but if that's the case they should have had that in writing in the contract.
This case is not going to go anywhere.
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They were just practicing 'market segmentation' ;-)
Re:from what I've read already (Score:5, Interesting)
Re:from what I've read already (Score:5, Insightful)
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"Specifically to deceive and mislead ProView". Why does ProView have a right to know the identity of who they do business with? Why does anyone have the *right* to know who they do business with? Some of us are out in the open, others hide behind their created names, and some don't even bother with th
setting sell price based upon buyer money (Score:3)
Is no more ethical than pretending you are poor.
The situation you describe is no different than the old story of getting flat tire at the only gas station in town when you ask the attendant how much it will be to fix the tire he says "how much do you have?".
The seller sets a price, when the buyer meets it a deal is done. Each tries to get the best deal from the other. If the seller would try to bring buyer desperation into the pricing policy, I don't see anything wrong with the buyer doing what they can to
Pay your fair share! (Score:1)
This is how the tax system works - you ask "how much for my share of Government?"
The MAN says, "How much you got?"
Seriously, this Chinese company must have a large holding of SCO Stock!
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Wouldn't you be upset if you stood in line at the store to buy the same bottle of pop as the person in front of you and the cashier said it would cost you more because you look like you have more money?
You have obviously never bought an airline ticket at the last minute have you?
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This is really nothing like that. Pro-view certainly wasn't trying to be charitable. It would be more like selling someone a hamburger for $5, then suing them when you found out they were a millionaire because you would have charged them $500. In that case, you would be the asshole. And you probably are, from the sounds of it.
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Uhmm... Since when does McDonald's charge $1 for a McDouble if you make less than $1mil/year, but charge $100 for the same McDouble if you make over a $1mil/year?
This is what Apple was trying to prevent. They didn't get it cheaper because they presented themselves as a smaller company; Proview didn't say "oh, you're a small company, so we'll cut the price". They just didn't pay more because they were Apple. There's nothing wrong with this.
Back to McDonald's, Donald Trump would hire bums, and pay them in hamburgers, to buy him McDoubles if McDonald's tried to pull that shit. Would you think that was wrong?
It's the same thing.
It's not quite the same. McDonald's is not the only restaurant that sell burgers. If you think that McDonald's burger is too expensive, you can get them on burger king, Carl Jr, or others, albeit on a slightly different.. err setup. On the other side, Proview is the only company that is able to provide apple the "ipad" trademark. It won't work if it's not "ipad"
Real kicker (Score:3)
Not only that, but China also has a legal culture where companies use shell companies to make purchases. According to Reuters [reuters.com]:
Not that this will prevent Proview from wanting to get more from the deal after-the-fact. I
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This is no different than a buyer trying to go after a seller for overcharging them for something after they realize they paid too much for it. .
People do this all the time if they can by returning the item. It's hard to determine the market value for a trademark so I'm not sure if it's feasible to find a middle ground between "gouging" and "giving it away", but Apple's tactics are fairly sleazy, like using a fake picture on a dating website.
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Apple has a long-standing tactic of creating shells to do their brand and part buying, to make it difficult for the rumor mills and competitors to figure out what Apple is up to. And it sounds like they're complaining that they sold the iPad name to a company they didn't realize was buying for Apple.. (otherwise they'd have no doubt have tried to charge them more for it)
Apple has an history of launching a product without getting getting all their trademark ducks lined up in a row. The trademark/company name "Apple" is one example. The Beatles owned that one for their holding company. The trademark "iPhone" is another example. Cisco owned that one for their internet phone.
After the success of the iPod, Apple even began threatening anyone who started naming their product iAnything and demanded that the name and their associated domain names be surrendered to them. They just
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To be fair, Apple had the Apple trademark pretty clear and in the green WRT computers. Trademarks are only applicable in the realm that the business operates under. Apple Computers only operated in the realm of computers, and Apple Music only operated in the music realm. There was no need for legal resolution until Apple Computers started venturing into the realm of sound / quicktime / etc.
iThing is problematic, in that it is a form of branding that only falls on the edge of trademark law. Hence, brandi
Prescient call by Vivek Wadhwa, eh? (Score:4, Informative)
BusinessWeek, Jan. 10, 2011: China Could Game the U.S. in Intellectual Property [businessweek.com]: Now China may do with intellectual property what it did with capitalism: adapt our system and beat us at our own game.
Proview has no claim outside mainland China (Score:2)
They sold the rights to the trademark to Apple. There is no problem manufacturing the product in China, as long as it's not sold in mainland China under that name. Apple does have rights to use the trademark elsewhere. This is purely a money grab by Proview.
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Forgot the usual IANAL
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Right; the article is totally off base about this stopping worldwide distribution. Even if they lost, they could continue to make the iPod in China for export only.
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It's so ironic (Score:1)
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Did you see pictures of the "iPad" ProVIEW developed? It's basically an opaque first-gen iMac with buttons on top of the screen. Similar down to where the speakers are located and the carry handle on the back.
I see no (big) problem (Score:2)
just a quick adaptation of artwork on the device and the box.
I don't care if the box reads 'Proview management pisses on their mothers graves®' in nice Chinese calligraphy. And that trademark isn't registered in China, at this time.
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and apple will have a hard time selling itv in uk (Score:1)
and apple will have a hard time selling itv in the uk. If they where to name there apple tv Itv.
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and apple will have a hard time selling itv in the uk. If they where to name there apple tv Itv.
So it's a good job that Apple haven't even confirmed that they are making a TV, let alone what it will be called.
Also, the newspaper claim that ITV had contacted Apple to warn them off has been disputed [theverge.com] - although I believe it was briefly an issue some years ago when the Apple TV STB was first announced.
Disregarding all that, yes, iTV would be a spectacularly bad name to use in the UK - even legally - because its a household name that has been associated with the second largest TV channel since the 1950s
Disney did the same (Score:3)
I have no idea whether or not it constitutes fraud to hide behind a "shell" company (although common sense tells me it isn't fraud, I mean a small company could've bought the trademark and then Apple bought it from them what's the difference?).
But I do know that Disney, when he was buying up (seemingly) most of Florida for Walt Disney WORLD used exactly this tactic to acquire the (tens of thousands?) of square miles of land he needed. He didn't want to repeat the fundamental mistake of building a theme park but not the land around it thus allowing (other) developers to get rich. (I understand that finally that Japanese American family that owned a strawberry farm right next to Disneyland finally sold, probably for a HUGE amount).
I never heard of Disney getting sued let alone losing.
So this, to me, doesnt seem to be fraud, not unless they lied about something. (I understand that Proview claimed the purchasers said they wouldn't have a competing product; well not only is the iPad completely different from what Proview made, but Proview hasn't made it for years).
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Houston, we have a problem (Score:2)
Steve Jobs personally was the only one who knew how to operate the reality distortion field. Now he's gone, it's thrashing about wildly causing all manner of worldwide chaos, such as this zombie Chinese company thinking it still owns the rights to the name it sold to someone because, err, that someone since sold it to Apple.
Apple could be in trouble this time... (Score:2)
There are two issues at hand : did Apple get the iPad trademark in China and is the buying through a shell company valid.
It seem that Apple has no rights for the iPad brand in China (well, they got screwed over this one). If courts in china decide that Apple has no right to the iPad name in China, this could mean that production could be blocked in China... And producing the iPad somewhere else would mean (much) higher costs.
There is also another problem : when Apple bought the name, it made up a name for a
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If courts in china decide that Apple has no right to the iPad name in China, this could mean that production could be blocked in China... And producing the iPad somewhere else would mean (much) higher costs.
Not at all. There is absolutely nothing to prevent Apple from building a device in one country and selling it in another country under a different name. Yes, Apple does not want to market their tablet product in China without using the iPad brand, but even if they were to lose (or be ruled not to own) the iPad trademark in China, they could still build it there. The trademark is for *trade*, not manufacture. So they sell the applePad in China, and the iPad everywhere else. Gmail seemed to do ok in the UK as
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It seem that Apple has no rights for the iPad brand in China
If this was a case being decided in the U.S. about someone who bought the trademark from a U.S. company, and if statements by other posters here are correct, there is a good chance that Apple would win. According to another poster the Chairman of the company (subsidiary of the parent company) that sold the trademark to Apple was (and is?) the same person of the Chairman of the company (alternate subsidiary of the same parent company) that owned the trademark for use in mainland China. Additionally, yet anot
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