Apple lobs pocket change to Proview, ending Chinese IPAD name row Apple has forked out $60m to settle the row over the name IPAD with Chinese firm Proview Technology. The fruity firm agreed to the sum to buy the name from Proview in mediation talks, the Higher People's Court of Guangdong said in a statement (translated by Google Translate). "All parties involved have agreed on the …
All Chinese banks are state owned, so called "commercial banks" are just a figure of speech, really. So they're never out of pocket.
In fact Apple pumps more into the Chinese economy than whatever crazy billions they were asking, especially when Apple aligns with other Chinese government interests.
Think the timing of iOS 6's "features for China" (e.g. Baidu search) is a coincidence? People tend to miss the forest for the trees.
Do you mean Apple will not be out of pocket $60m because Tim Cook declined dividends on his restricted shares, 1/2 until 2016 and half until 2021, which total $75m?
Or do you mean that Apple is so successful they are now printing their own money like the Federal Reserve System in Washington, D.C.?
Apple probably not pinching anything in this case. According to the Hong Kong court judgement, Apple bought the lot fair'n'square from Proview Taiwan. The CEO of that, was also the CEO of Proview China, and the court accused him of deceptive practises.
So in this case I believe that Apple are in the right, and have just been shaken down. But that's one of the costs of doing business in China, which you need to factor in - against the profits from Chinese sales, and the savings from manufacturing there. Just like operating in Russia - there's always the risk that you'll get screwed, and have no legal protection.
Proview Taiwan and China were run by the same person. They were different legal entities, which has allowed this switcheroo. But I'd be willing to bet that this was fraud, rather than error. Which is why the judge in the Hong Kong case specifically criticised the CEO. I believe the Taiwan operation has already been wound up, leaving Apple no one to sue, rather conveniently...
Apple are blameless here. They were either accidentally defrauded by a cock-up at Proview Taiwan, or (more likely in my opinion) deliberately so by the China bit of the company. C'est la vie.
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The switcheroo occurred AFTER Apple had set up a dummy corporation whose sole purpose was to buy the trademark, "iPad", from Proview and to deceive Proview from knowing who the real buyer was. Proview knew how valuable their trade mark was to Apple. Can you give them credit for inquiring if IPADL, the dummy corp, was acting in behalf of Apple?
Apple's fraud creating IPADL preceded Proview's fraud about the Taiwan ownership of the trademark. With fraud on both sides of the contract, there was no contract of sale. It was void ab initio.
Apple was free to pack up and return to Cupertino. But without the trade mark.
In February Rik Myslewski wrote: "the Shenzhen company involved in the imbroglio now wants Cupertino to be levied a $38m fine – and it wants an apology."
But Apple dicked around for 4 months and just wrote a check for $60 mil. Maybe they paid the extra $22 mil in lieu of an apology.
"Even where it is established that the essential elements of a legally binding contract are present, and the terms can clearly be identified, the agreement may not be legally enforceable because of the presence of some vitiating factor. Thus, where fraud is present or a fundamental mistake as to the contract has been made by one or both parties, the contract may be either totally void or voidable at the option of the innocent party."
"An action for misrepresentation is the remedy for a party who has entered into a contract in reliance on a false statement (representation) of fact by the other party but the statement has not become incorporated in the contract as a term, i.e. the statement is not part of the bargain that the parties have made."
"Statements made by the parties in the course of negotiations leading up to the formation of a contract are classified as either representations or terms. An actionable misrepresentation is a false statement of fact made during pre-contractual negotiations by one party which induces the other party to enter into a contract.
That's all bollocks.
Proview sold the trademark via their Taiwanese arm. For all the money they thought they could get for it. They may have been motivated to try and nick a bit more, because they were feeling sad that they didn't get extra cash at the time. But that's no excuse.
Nor did Apple commit fraud with their purchase through a shell company. At least so far as we know. There was no obligation on them to tell Proview what they were up to. So long as they didn't actually tell any lies in their purchase. There's nothing to force them to tell all the truth. By the terms of that agreement they bought all the world rights to the trademark. And there was nothing in the agreement to stop the company that bought it from selling it on. Given the company that was buying it, I'm sure Proview knew that they were getting it for someone else - just not who, or what for.
This was all established by the court case in Hong Kong, which Apple won. I'd suggest that Hong Kong's legal system is the best we're going to get in terms of what's on offer. I'm sure the pointless case that Proview started in the US will be wound up as part of the deal.
The only question is what happened between Proview Taiwan and Proview China. Either Proview Taiwan deliberately sold something it didn't own, or moved the ownership of that trademark within the group at some point afterwards - in order to screw over Apple. If Proview Taiwan still existed, Apple would simply be able to turn around to them and demand their $60m back. It is remotely possible that this was a cock-up on behalf of Proview, but much more likely not.
I don't think so.
<Proview sold the trademark via their Taiwanese arm.>
It wasn't their Taiwanese arm, it was their Taiwanese factory. Hardly a wheeler/dealer if Apple's lawyers had investigated. "Proview International Holdings (SEHK: 334; Chinese: 唯冠) is a Chinese manufacturer of computer monitors and other media devices. The company markets its products under its own and other brand name through its extensive distribution network over the world. Proview manufactures CRT and LCD monitors, LCD TVs, Plasma TVs and DVD players. Proview has production facilities located in Shenzhen, Wuhan in China, and in Brazil and Taiwan." Wikipedia calls Proview Taiwan a production facility.
<Nor did Apple commit fraud with their purchase through a shell company. At least so far as we know. There was no obligation on them to tell Proview what they were up to.> Did you mean shell company (A shell company is a company that has no real operating business, but which nonetheless has a class of shares registered with the Securities and Exchange Commission, makes public company filings, and has shares that trade on the pink sheets or a small stock exchange.) Or did you mean Dummy Corporation (A dummy corporation or dummy company is an incorporated firm created to serve as a front or cover for one or more companies. It helps to hide the identity of its principal.)?
< "There was no obligation to tell Proview what they were up to."> Unless, Proview asked them: Are you acting as agents or otherwise representing the Apple Corp?" Then there was an obligation to tell the truth.
<"There's nothing to force them to tell all the truth.">
Nothing except contract law. "Where fraud is present... the contract may be either totally void or voidable at the option of the innocent party."
<"This was all established by the court case in Hong Kong, which Apple won.">
The Hong Kong victory was like a Judas goat leading Apple from a $38m judgement to a $60m one.
<"It is remotely possible that this was a cock-up on behalf of Proview, but much more likely not.>
Proview didn't put the trademark up for sale on Craig's List. IPADL approached them very casually, probably through a third party (fourth party, if you count Apple). Proview's lawyers asked the IPADL negotiators whether or not they were acting in behalf of Apple and they said 'no'. Because it was IPADL and not Apple at the negotiating table, the trademark was sold for much less than Apple would have paid.
To insure that they were not being ripped off by Apple, Proview sold the trademark to IPADL through their Taiwan factory, telling them that Taiwan represented Proview when it didn't.
Then Proview waited to see what would happen. Would a feminine hygienic pad appear on the market or would iPads start selling in China?
Tampons or tablets? If the former, Proview settles for $50k. If the latter they'll take as much as they can get.
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