w*2
2 楼
基本上苹果那边负责处理这件事情的人可以被开了。
http://www.businessinsider.com/apple-vs-proview-the-assignment-
There Are Several Holes In Apple's Trademark Contract In China
Stan Abrams, China Hearsay | 7 hours ago | 1,286 | 1
A A A
inShare
ap
Stan Abrams
Email
Stan Abrams is a Beijing-based IP/IT lawyer and law professor.
Recent Posts
Apple Auditor: Worker Suicides Caused, in Part, by Boredom
China, Water & Development
What Have We Learned About China’s IP System? Answer: nothing
Apple Auditor: Worker Suicides Caused, in Part, by Boredom
China, Water & Development
What Have We Learned About China’s IP System? Answer: nothing
I was going to give this issue a rest for a couple days, but apparently that
’s not going to happen. The challenge of commenting on this case is that
new information keeps coming out. Gives me something to write about, but it
’s tough on continuity.
OK, latest issue is that the 2009 trademark transfer agreement and at least
some of the related evidence that Apple introduced both in the Shenzhen
court case and the Hong Kong action has been published online. I’ll take a
look at the agreement below and leave the rest to another post, if anything
in there is worth talking about.
Big disclaimer: the docs are on the AllthingsD site (h/t Paul Denlinger (@
pdenlinger) for the link). I have no way of verifying the authenticity of
these documents, nor do I know if they have been edited or are otherwise
incomplete. If any of this is true, my analysis might be way off, and I’ll
be really annoyed (but hey, I’ve come this far, so I can’t resist.)
I’ll try not to get stuck in the tall legal grass and keep it simple, but
there are some legal procedures at issue here. Let’s start with the
Assignment Agreement, which is between Apple’s intermediary, IP Application
Development, Ltd. (let’s call them IPADL for short). Remember that big
brand owners commonly use reps like this to disguise their purchases. Apple
didn’t want to reveal itself as a deep pocket for fears of getting taken
advantage of; in this case, those fears were certainly warranted!
Some miscellaneous points about the Agreement:
1. It appears to be two pages long, unless I’m missing pages. This is not
unprecedented, but I would never allow a client of mine to sign something
like that unless it was a “friendly” arrangement, such as parent-
subsidiary. Although the basics are included, there is nowhere near enough
protection built into the Agreement.
2. The signatory is Taiwan Proview. I wasn’t 100% sure about this before,
since they do have a Hong Kong holding company.
3. The payment is 35,000 pounds for the entire portfolio, and the marks are
all set forth in an appendix (Schedule A) as one would expect. I dimly
recall writing about this many weeks ago expressing shock that a deal would
go through without the trademark particulars being listed in an appendix
like this. So to confirm, that was in fact done (I would say properly).
4. Post-execution responsibilities. This is the main event, folks. If you
look at the payment clause (Article 1, page 2), it specifies that in
consideration of the 35K, Proview shall transfer the marks. In addition, for
each jurisdiction, “Proview shall also execute an assignment document
which IPADL can record in that jurisdiction to evidence the transfer of that
Trade Mark.”
This is very important! I’ve discussed this assignment document several
times before. While the Assignment Agreement we are talking about is the
commercial arrangement between the two parties, the assignment document is
part of the application package that needs to be filed with the Trademark
Office to effectuate the transfer itself. You don’t just file the contract.
When a commercial transaction requires docs like this to complete the deal,
there are two ways to do this. First, if it’s possible, you can require all
parties to sign everything and present it at closing (in this case, when
the Agreement was executed). However, this is not always possible or
desirable, for a variety of reasons related to government procedure or
payment mechanisms. This can get complicated, but there are many options,
including having multiple payments to secure cooperation.
Second, you can do what IPADL and Proview did in this instance in Article 1,
which is to include language requiring the IP owner to cooperate with the
purchaser after the Agreement is signed. This is also a very common approach
and one I have used on many occasions.
What if the seller fails to cooperate? Then the purchaser, who has already
paid, has to rely on the contract to enforce their rights. In other words,
you can take the other party to court for breach of contract. As we know,
Apple has pursued this in Hong Kong, but their limited victory there in an
interlocutory ruling does not translate into getting the trademark back in
China. (Another complicated matter relating to cross-border litigation and
enforcement.)
What was the proper approach in this case? Well, Option 1 is always
preferable to the purchaser, assuming you can do it. We don’t know whether
it was discussed or not, but this is still my #1 question about this whole
dispute: why didn’t IPADL require Proview to present the assignment
documentation at closing? There might be a reason for this, but I still don
’t know what it is. My criticisms of Apple’s lawyers, including “Epic
Fail” characterizations, are mainly about this issue.
One more quick (very technical) disclaimer. If you’re a practitioner, you
might be thinking, “Stan, you’ve got it all wrong. The assignment
application system doesn’t work that way in China.” Correct, sort of.
It is my understanding that within the past two years, the Trademark Office
has changed the rules slightly because of a problem with fraudulent
transfers. These days, even if the purchaser files all the docs, the
original owner still must respond to an official notification from the
Trademark Office. In other words, under current rules, Option 1 is no longer
viable for trademark in China ? you will always need the cooperation of the
other party post-execution. However, the iPad transfer deal went down in
2009, before these new rules went into effect.
Bottom line: looking at the Agreement doesn’t fundamentally change my mind
on any of this. Proview still broke its promise and Apple still didn’t
mandate the best closing procedures. The only surprising bit is the length
of the agreement itself. Apple’s best shot here is still the Shenzhen
appellate case that will begin on February 29.
Read more: http://www.chinahearsay.com/apple-vs-proview-assignment-agreement/#ixzz1mfNo53Sm
http://www.businessinsider.com/apple-vs-proview-the-assignment-
There Are Several Holes In Apple's Trademark Contract In China
Stan Abrams, China Hearsay | 7 hours ago | 1,286 | 1
A A A
inShare
ap
Stan Abrams
Stan Abrams is a Beijing-based IP/IT lawyer and law professor.
Recent Posts
Apple Auditor: Worker Suicides Caused, in Part, by Boredom
China, Water & Development
What Have We Learned About China’s IP System? Answer: nothing
Apple Auditor: Worker Suicides Caused, in Part, by Boredom
China, Water & Development
What Have We Learned About China’s IP System? Answer: nothing
I was going to give this issue a rest for a couple days, but apparently that
’s not going to happen. The challenge of commenting on this case is that
new information keeps coming out. Gives me something to write about, but it
’s tough on continuity.
OK, latest issue is that the 2009 trademark transfer agreement and at least
some of the related evidence that Apple introduced both in the Shenzhen
court case and the Hong Kong action has been published online. I’ll take a
look at the agreement below and leave the rest to another post, if anything
in there is worth talking about.
Big disclaimer: the docs are on the AllthingsD site (h/t Paul Denlinger (@
pdenlinger) for the link). I have no way of verifying the authenticity of
these documents, nor do I know if they have been edited or are otherwise
incomplete. If any of this is true, my analysis might be way off, and I’ll
be really annoyed (but hey, I’ve come this far, so I can’t resist.)
I’ll try not to get stuck in the tall legal grass and keep it simple, but
there are some legal procedures at issue here. Let’s start with the
Assignment Agreement, which is between Apple’s intermediary, IP Application
Development, Ltd. (let’s call them IPADL for short). Remember that big
brand owners commonly use reps like this to disguise their purchases. Apple
didn’t want to reveal itself as a deep pocket for fears of getting taken
advantage of; in this case, those fears were certainly warranted!
Some miscellaneous points about the Agreement:
1. It appears to be two pages long, unless I’m missing pages. This is not
unprecedented, but I would never allow a client of mine to sign something
like that unless it was a “friendly” arrangement, such as parent-
subsidiary. Although the basics are included, there is nowhere near enough
protection built into the Agreement.
2. The signatory is Taiwan Proview. I wasn’t 100% sure about this before,
since they do have a Hong Kong holding company.
3. The payment is 35,000 pounds for the entire portfolio, and the marks are
all set forth in an appendix (Schedule A) as one would expect. I dimly
recall writing about this many weeks ago expressing shock that a deal would
go through without the trademark particulars being listed in an appendix
like this. So to confirm, that was in fact done (I would say properly).
4. Post-execution responsibilities. This is the main event, folks. If you
look at the payment clause (Article 1, page 2), it specifies that in
consideration of the 35K, Proview shall transfer the marks. In addition, for
each jurisdiction, “Proview shall also execute an assignment document
which IPADL can record in that jurisdiction to evidence the transfer of that
Trade Mark.”
This is very important! I’ve discussed this assignment document several
times before. While the Assignment Agreement we are talking about is the
commercial arrangement between the two parties, the assignment document is
part of the application package that needs to be filed with the Trademark
Office to effectuate the transfer itself. You don’t just file the contract.
When a commercial transaction requires docs like this to complete the deal,
there are two ways to do this. First, if it’s possible, you can require all
parties to sign everything and present it at closing (in this case, when
the Agreement was executed). However, this is not always possible or
desirable, for a variety of reasons related to government procedure or
payment mechanisms. This can get complicated, but there are many options,
including having multiple payments to secure cooperation.
Second, you can do what IPADL and Proview did in this instance in Article 1,
which is to include language requiring the IP owner to cooperate with the
purchaser after the Agreement is signed. This is also a very common approach
and one I have used on many occasions.
What if the seller fails to cooperate? Then the purchaser, who has already
paid, has to rely on the contract to enforce their rights. In other words,
you can take the other party to court for breach of contract. As we know,
Apple has pursued this in Hong Kong, but their limited victory there in an
interlocutory ruling does not translate into getting the trademark back in
China. (Another complicated matter relating to cross-border litigation and
enforcement.)
What was the proper approach in this case? Well, Option 1 is always
preferable to the purchaser, assuming you can do it. We don’t know whether
it was discussed or not, but this is still my #1 question about this whole
dispute: why didn’t IPADL require Proview to present the assignment
documentation at closing? There might be a reason for this, but I still don
’t know what it is. My criticisms of Apple’s lawyers, including “Epic
Fail” characterizations, are mainly about this issue.
One more quick (very technical) disclaimer. If you’re a practitioner, you
might be thinking, “Stan, you’ve got it all wrong. The assignment
application system doesn’t work that way in China.” Correct, sort of.
It is my understanding that within the past two years, the Trademark Office
has changed the rules slightly because of a problem with fraudulent
transfers. These days, even if the purchaser files all the docs, the
original owner still must respond to an official notification from the
Trademark Office. In other words, under current rules, Option 1 is no longer
viable for trademark in China ? you will always need the cooperation of the
other party post-execution. However, the iPad transfer deal went down in
2009, before these new rules went into effect.
Bottom line: looking at the Agreement doesn’t fundamentally change my mind
on any of this. Proview still broke its promise and Apple still didn’t
mandate the best closing procedures. The only surprising bit is the length
of the agreement itself. Apple’s best shot here is still the Shenzhen
appellate case that will begin on February 29.
Read more: http://www.chinahearsay.com/apple-vs-proview-assignment-agreement/#ixzz1mfNo53Sm
a*g
3 楼
偶的三年了，最近有点状态不稳，估计得换主板。在想值不值的折腾一下换主板，还是
买个新的得了。
买个新的得了。
a*n
4 楼
等着，有都pass,可是寄过来差超过一周的
【在 l**y 的大作中提到】
: 查询ems,发现妈妈的护照寄回来了,爸爸还没动静.不会被拒签了吧
【在 l**y 的大作中提到】
: 查询ems,发现妈妈的护照寄回来了,爸爸还没动静.不会被拒签了吧
N*w
5 楼
搞个新的有必要
旧的留着当备份机
【在 a****g 的大作中提到】
: 偶的三年了，最近有点状态不稳，估计得换主板。在想值不值的折腾一下换主板，还是
: 买个新的得了。
旧的留着当备份机
【在 a****g 的大作中提到】
: 偶的三年了，最近有点状态不稳，估计得换主板。在想值不值的折腾一下换主板，还是
: 买个新的得了。
a*n
6 楼
代签的话是不是在中信还会填个EMS单子?
d*n
7 楼
占地方。
【在 N****w 的大作中提到】
: 搞个新的有必要
: 旧的留着当备份机
【在 N****w 的大作中提到】
: 搞个新的有必要
: 旧的留着当备份机
N*w
8 楼
床底下也没空了？
【在 d****n 的大作中提到】
: 占地方。
【在 d****n 的大作中提到】
: 占地方。
a*g
9 楼
然也。准备把硬盘吧下来当backup drive :P
【在 d****n 的大作中提到】
: 占地方。
【在 d****n 的大作中提到】
: 占地方。
a*g
10 楼
N boxes of books :P
【在 N****w 的大作中提到】
: 床底下也没空了？
【在 N****w 的大作中提到】
: 床底下也没空了？
d*n
11 楼
床底下一箱玩具。
【在 N****w 的大作中提到】
: 床底下也没空了？
【在 N****w 的大作中提到】
: 床底下也没空了？
l*e
12 楼
书扔了就是了，要不然孩子大了也会扔。
玩具送人就好了，要不孩子大了也得送人。
机器就没有办法说了，我一直想等INTEL的接口稳定点儿就升级，
看来等不到了。显卡已经挂了，现在用板载的撑着呢。
听说把显卡烤烤还能用，已经准备好了，不知有人试过没有？
玩具送人就好了，要不孩子大了也得送人。
机器就没有办法说了，我一直想等INTEL的接口稳定点儿就升级，
看来等不到了。显卡已经挂了，现在用板载的撑着呢。
听说把显卡烤烤还能用，已经准备好了，不知有人试过没有？
D*3
13 楼
俺家AMD Duron 600超900 十多年还能跑
Athlon XP1700+ @2.1G 也七，八年了，家里老人还天天在用
奔腾166〉AMD K6 300〉Duron 600〉Athlon XP1700+〉core 2 duo E6300
Athlon XP1700+ @2.1G 也七，八年了，家里老人还天天在用
奔腾166〉AMD K6 300〉Duron 600〉Athlon XP1700+〉core 2 duo E6300
t*g
14 楼
你那个Duron 600跑啥系统？
我爸的那台老PIII-700前年我回去的时候（win98)慢得我感觉回了石器时代。赶紧给换
了个
core2d
【在 D***3 的大作中提到】
: 俺家AMD Duron 600超900 十多年还能跑
: Athlon XP1700+ @2.1G 也七，八年了，家里老人还天天在用
: 奔腾166〉AMD K6 300〉Duron 600〉Athlon XP1700+〉core 2 duo E6300
我爸的那台老PIII-700前年我回去的时候（win98)慢得我感觉回了石器时代。赶紧给换
了个
core2d
【在 D***3 的大作中提到】
: 俺家AMD Duron 600超900 十多年还能跑
: Athlon XP1700+ @2.1G 也七，八年了，家里老人还天天在用
: 奔腾166〉AMD K6 300〉Duron 600〉Athlon XP1700+〉core 2 duo E6300
D*3
15 楼
Duron 600 跑 window xp, 内存不够,不想再折腾
Athlon XP1700+ 跑 window 7
【在 t****g 的大作中提到】
: 你那个Duron 600跑啥系统？
: 我爸的那台老PIII-700前年我回去的时候（win98)慢得我感觉回了石器时代。赶紧给换
: 了个
: core2d
Athlon XP1700+ 跑 window 7
【在 t****g 的大作中提到】
: 你那个Duron 600跑啥系统？
: 我爸的那台老PIII-700前年我回去的时候（win98)慢得我感觉回了石器时代。赶紧给换
: 了个
: core2d
d*0
16 楼
感谢AMD不给力，core2的生命周期还是很长的
s9
17 楼
看见这个Duron我就来气。 tnnd的当年连烧了我2块主板。
【在 D***3 的大作中提到】
: Duron 600 跑 window xp, 内存不够,不想再折腾
: Athlon XP1700+ 跑 window 7
【在 D***3 的大作中提到】
: Duron 600 跑 window xp, 内存不够,不想再折腾
: Athlon XP1700+ 跑 window 7
D*D
18 楼
Duron running FreeNAS.
d*i
19 楼
我老还时不时的用一台99年配的AMD K6-2跑win 98，很快
【在 a****g 的大作中提到】
: 偶的三年了，最近有点状态不稳，估计得换主板。在想值不值的折腾一下换主板，还是
: 买个新的得了。
【在 a****g 的大作中提到】
: 偶的三年了，最近有点状态不稳，估计得换主板。在想值不值的折腾一下换主板，还是
: 买个新的得了。
v*o
20 楼
4年了。还好好的。加了内存。加了硬盘。
t*7
21 楼
我的电脑是04年的。
【在 v******o 的大作中提到】
: 4年了。还好好的。加了内存。加了硬盘。
【在 v******o 的大作中提到】
: 4年了。还好好的。加了内存。加了硬盘。
J*0
22 楼
04年的AMD自装机，最近也有点不稳，打开把灰吹一下，顺便把CPU上碰歪的几个针脚扳
直，又好了。
【在 a****g 的大作中提到】
: 偶的三年了，最近有点状态不稳，估计得换主板。在想值不值的折腾一下换主板，还是
: 买个新的得了。
直，又好了。
【在 a****g 的大作中提到】
: 偶的三年了，最近有点状态不稳，估计得换主板。在想值不值的折腾一下换主板，还是
: 买个新的得了。
相关阅读
华为手机变砖 有高手会修吗？在新款mac mini面前intel nuc 的性价比太低了lenovo outlet上的机器到底是如何定价的今晚修了个g500为啥thinkpad yoga pro更新了，其他的不更新？主板上有螺丝了，就不能push pin了吧？rma的东西，怎么寄最便宜呀？微软的烂，无以复加真正的自循环液冷设计我知道怎么越过技嘉土板1.2v的限制了小型电脑锁 哪里买？(DELL inspiron 11 3147) (转载)Logitech G710 Mechanical Gaming Keyboard，Cherry MX Blue电脑总是停顿ts140装2.5寸盘可不可以拿被子把电脑包起来为什么11寸的笔记本很少有i7处理器的竟然没人讨论 终结 chromebook 的杀器$150, Lenovo Q190值得买吗？NAS求建议挖个坑，macbook和thinkpad哪个耐用？