Gao Fuping (高富平)

Editor's Note:

The trademark dispute over the iPad between Apple and Shenzhen Proview Technology has intensified after several areas in the Chinese mainland reportedly pulled the iPad off shelves recently. Apple has filed a case with a higher court in Guangdong Province last month, following its defeat in the first trial in November in Shenzhen. Can Apple win the lawsuit? Why are people criticizing Proview for "looting a burning house?" Global Times (GT) reporter Huang Jingjing interviewed Gao Fuping (Gao), dean of the Intellectual Property School of East China University of Political Science and Law, on these issues.

GT: Previously, Chinese parties were always challenged or accused by their foreign counterparts over intellectual property rights (IPR). But this time a Chinese enterprise triumphed over gigantic Apple at the initial trial. How do you view the result?

Gao: IPR are a legal weapon for everybody. Whoever controls such a weapon can dominate the market it covers and create a continuous influx of profit. With the power in hand, one can say "no" boldly to other parties, large or small, when one's rights are violated.

Foreign major enterprises made earlier use of this weapon than Chinese ones, which resulted in the phenomenon where Chinese parties were always the one being accused. But right now, more and more Chinese enterprises have begun to deploy the weapon to safeguard their legal interests and rights. This is a cheerful trend. Confrontation creates balance.

GT: Is it possible that Apple will turn the tables and win the lawsuit? Proview asked for compensation of 10 billion yuan ($1.59 billion). If Apple loses, what price will it pay?

Gao: After losing in the lawsuit in the Shenzhen Intermediate People's Court, Apple appealed to the Higher People's Court in Guangdong Province, and the second trial will open at the end of this month. Meanwhile, Proview has also filed suit against Apple in Shanghai.

The final result of the lawsuits depends on whether Apple has effectively been the recipient of the "iPad" trademark first registered by Proview in Shenzhen on the Chinese mainland in 2001.

In 2009, Proview's sister company in Taiwan, which is also affiliated with the Hong Kong-based Proview International Holdings Ltd, sold the trademark to Apple. The argument lies in whether the company in Taiwan had the right to transfer the trademark.

In trademark infringement cases, compensation depends on the victim's losses and the profit the other side has gained from the use of the trademark. But in this case, there are still other factors to be considered. Apple has created immense value and reputation around the trademark. The company in Shenzhen only registered the trademark, without producing any products under the name. So it's still hard to estimate the compensation if Apple loses.

But Apple must learn a lesson from this. It failed to do proper research and investigation into intellectual property registration on the Chinese mainland, one of its markets with the most potential. And it has to pay price for the error.