Saturday28 January 2023

Apple wins an injunction preventing Proview from selling the iPad name; the press tries to spin it.

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73It seems that the press feels that Apple has won the war with Proview in China. There is much crowing about how Apple rightfully owns the trademark for the iPad in all countries including China. There is even a lengthy court document over at “AllThingsD” that covers it. There is, as there always is, a problem though. So many people are concerned with the aggressive tone of the judge that they are missing one very crucial fact.

Apple did not do their due diligence in determining if the Proview Group actually owned the trademark in all the countries it said it did. Here are the simple facts in the case (regardless of the wording of the decision today). Apple entered into an agreement with IP Application (a UK based firm) to purchase the rights to the trademark iPad from Proview Group in 10 countries. Proview Group stated they were the sole owners of the trademark and signed the agreement. It turns out that Proview Group did not have the right to do that as indicated by this section of the decision:

“However, after Apple had announced the launch of the 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”

That is really all there is to it guys. Apple as the buyer of the IP is responsible for making sure it is clear before signing. If you buy a house in the US you better make sure it has a clear title and no tax liens or you could end up losing it. Neither Apple no IP Application did what they were supposed to and entered into an agreement that was void the moment it was signed.

After the fact they want to go back and claim that Proview Shenzhen should just give up something that is theirs. If we are looking for a legal precedent then we need look no further than Apple’s battle with Motorola. Apple claimed that once Motorola licensed its technology out it was exhausted, and they feel they should not have to pay anything for it. Never mind the amount of licensing fees they never paid to Motorola those should not count.

We can also look at what Apple it trying to do to Kodak, another company that Apple owes significant license fees to.

However, back to the decision at hand; Apple has, in truth, won nothing but the right to bring their case to court. They have not been awarded the trademarks yet. They still have to go to court and prove a few things first.

"It is well stablished that one important factor in the balance of convenienve is the preservation of the status quo. The grant of the injunctions sought against the defendanrs will serve to preserve the status quo pending the trial without causing any real loss or damage to the defendants. But as noted, if no interiem injunctions are in place, and the defendants are at liberty to dispose of the China Trademarks before trial, Apple and IP Application will suffer irreparable damage, even if they succeed at the end of the day. The balance of convenience is clearly weighed heavily in favor of granting relief sought"

This means that while Apple can prevent Proview from selling or trading the Trademarks have not won them yet. Proview could still win this one simply on the fact that a mistake on Apple’s part is not Proview Shenzhen’s problem. Plus Proview Sehnzhen, as the rightful owners can ask for their own injunctions against Apple (hence the import/export ban request). After reading the whole document at AllThingsD I have found some rather odd commentary by the judge here which could be thrown out.

These are items like; “Apple has launched and marketed its iPads worldwide, including, in particular, in Mainland China. It is accordingly important that it is able to secure and obtain the China Trademarks”

I believe that Apple should have made sure it bought the trademark from the right company; the judge here does not appear to be following the laws but seems to be leaning toward Apple from the start. Proview Group did not have the rights to sell the China Trademarks to anyone. Apple and IP Applications can file fraud charges against Proview Group, but that does not give them the rights to a trademark that Proview Group did not own. This is regardless of who the CEO is for both parts of the company.  Apple is also trying to claim that Proview Shenzhen is trying to sell off the trademark to another company. The problem is that the evidence that they bring is nothing more that rumors from blogs and analysis sites. There have been no companies that have been contacted about buying the China Trademarks and Proview Shenzhen has said they just want fair value from Apple for their property.

Apple has a lot of pull in China with the amount of manufacturing they do in that country. However, there is increasing scrutiny over their business dealings and more information about their actions is coming to light. It is possible that they will be able to bully their way through this one, but we really hope that is not the case.

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Last modified on Friday, 17 February 2012 07:15

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