The news that what's arguably the world's best known
company, Apple, is unable to continue selling what's arguably
the world's hottest product, IPad, under that name in China
will give IP lawyers the heebie-jeebies. Others will no doubt
experience a certain schadenfreude. If you've done a trade mark
clearance exercise, you'll know that even finding a name
that's available in South Africa can be tricky. Imagine trying
to do it worldwide, as many multinationals need to do from time to
time. All those translations, all those transliterations! And it
certainly doesn't help if you choose a rather weak and obvious
name like IPad, which is likely to be quite popular. When Apple
needs to prepare for a new launch it decides on a name and then
uses an agent (or special purpose vehicle) to buy up whatever
registrations it needs – it obviously doesn't want to go
in as Apple, with the 'Hi we're Apple, we'd like to buy
your trade mark registration, but please bear in mind we're a
tiny start-up and we really don't have much to spend on a
name' approach unlikely to succeed.
In 2006, Apple started buying up registrations for IPad,
including registrations in China, South Korea and the EU from a
Taiwanese company called Proview. The price: a mere US$35 000. But
Apple's lawyers slipped up - the Taiwanese company didn't
in fact own the Chinese registration, this was owned by
Proview's Chinese subsidiary or associated company, Proview
Shenzen. The news reports aren't nearly as well written as this
one, of course, but it seems that the sequence of events was this -
by the time Proview was asked to arrange for the transfer of the
Chinese registration, it realised that it was in fact dealing with
Apple and it raised the price significantly; up yours said Apple,
at the same time asking a Chinese court to order the transfer of
the registration and claiming that it had simply made a mistake
because it didn't read Chinese; tough luck Apple said the
court, you should do proper due diligences (remember parents, when
it comes to subject choice for your children, Mandarin's far
more useful that Pedi!). So Apple doesn't have a registration
in the only country where anyone can still afford an IPad. A
country where over 1 million of the silly things were sold in the
quarter April to June 2011. A country that accounts for 16% of
Apple's sales. And now Apple's been sued for infringement
and it has interdicts against it in two regions. With talk of
further interdicts and a damages claim of US$ 1 billion. OH ...!
(insert swear word of your choice). Happy holidays!
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Intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain names, written and recorded media and inventions. The word IP refers to creation of the mind and expression: inventions, literary and artistic works, symbols, names and images used in commerce.
Intellectual Property is a vibrant and fascinating area of Law. It concerns the ideas of property, "The right to possess, use and enjoy a determinate thing."
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