Trump’s China trademark no big surprise, but in media frenzy one legal dimension has largely gone unreported 16 Feb 17
This week a trademark application was the subject of rare international media coverage after US President Donald Trump saw a TRUMP mark progress to registration in China. While much speculation has centred on whether the move represents an inexpensive way for China to curry favour with the president, from a legal perspective the registration is speculation. And while the focus has been directed at the political fallout from a president being granted such rights, other aspects are worth scrutiny for trademark experts.
The trademark application for TRUMP in class 37 (for building construction and repair services) dates back to 2006, meaning that the registration of the mark this week ends a decade-long effort to secure protection. It is worth noting that it is not the first registration he has been granted in the jurisdiction, and dozens of applications remain active. He has also faced battles against multiple third parties that have registered Trump-related marks in greater China – last year, for instance, he was victorious in a dispute with a Macau company which had registered the TRUMP mark for restaurants and catering. That he has faced such issues is no surprise to Lee Eulgen of Neal Gerber & Eisenberg, who told World Trademark Review (before this week’s decision): “What Trump is experiencing in China is similar to what many American or other foreign national applicants experience in China – they are running into squatters. Trump is a prolific trademark filer so it is predictable that he would have conflicts.”
In normal circumstances this would be a story of an applicant winning a lengthy battle to secure a trademark in his name at a time when he has attained a new level of fame (bolstering his efforts to secure protection). This is also, of course, a period in which the Chinese authorities are clarifying the treatment of personal names as marks (as noted below). In this respect, then, that the mark was registered is not a great surprise and in some respects brings clarity to questions over the registrability of names.
What has caused a flurry of media coverage this week, however, is that this is the first mark this particular applicant has been granted while US president, raising the question of whether the granting (and receipt) of a registered trademark violates the emoluments clause of the US Constitution. That clause states that “no person holding any office of profit or trust under them, shall, without the Consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign state”.
The South China Morning Post reports that the development risks a constitutional crisis, with Barack Obama’s former ethics lawyer, Norman Eisen, quoted as saying: “Each of these trademarks is a potential emolument.” In a report on ABC News, he expanded: “There can be no question that it is a terrible idea for Donald Trump to be accepting the registration of these valuable property rights from China while he's a sitting president of the United States."
Interestingly, while many such applicants apply for their names as trademarks via a company or entity, Trump appears to have historically applied for marks in his personal name. Ironically, it is his ascension to the presidency that has likely elevated his profile to a point where he can protect his name in this way in China. The flipside is that this rise may also be used against him doing so. But whether the granting of trademark rights is actually an issue that has immediate legal consequence remains to be seen – the legal action filed against Trump by the Citizens for Responsibility and Ethics in Washington, seeking to “stop the President from violating the Constitution by illegally receiving payments from foreign governments” was filed last month and therefore makes no specific mention of trademarks. If that suit fails, it may deter subsequent actions based on the receipt of trademark rights.
In many respects, this is very much a political story that just so happens to involve trademarks. However, while understandably of less interest to the mainstream media, there are aspects that are worth examining from an IP owner perspective – one being the treatment of personal names by the Chinese authorities.
As we noted last month, following its ruling in the widely publicised Qiaodan dispute, China’s Supreme People’s Court (SPC) issued a judicial interpretation on the registrability of personal names of celebrities and other ‘public figures’ under the country’s trademark law. This stated that trademarks covering the names of “public figures in fields such as politics, economics, culture, religion and ethnic affairs” is forbidden under the trademark law. The Qiaodan case centred on basketball legend Michael Jordan’s efforts to cancel marks that he argued had been filed in bad faith in order to exploit his personal brand and naming rights. As US president, Trump clearly has fame on his side in efforts to do the same against third party registrants that have filed in bad faith. That speaks to cancellation, but what about registration?
In the upcoming issue of World Trademark Review we present in-depth analysis of the Qiaodan case. As noted in the article, the specific question of whether public figures can themselves obtain trademark registrations for their names remained unaddressed by the SPC guidance, with Simon Jim, managing director at Hong Kong-based brand protection consultancy Brand MO, observing: “Clearly, the Supreme People’s Court has not thought about a situation where a public figure himself applies for registration. Will such an application be allowed?” This week’s Trump decision may have provided the answer to that question.
While it is a story that will likely run for some time, given the pipeline of applications he has lined up in the country, this particular trademark issue alone is unlikely to have grave implications for Trump (although it would be quite the trademark story if it did!). His critics will likely focus on other charges and challenges to his presidency, while his supporters will argue that this was an application that dates back 10 years and that he has distanced himself from his businesses since assuming office, reducing the potential for such marks to be used to obtain political influence.
However it plays out, that media coverage is focused on the potential political fallout of this week’s trademark registration is entirely understandable. For those in the legal trademark space though, the registration of the TRUMP mark may have gone some way to providing clarity on how China will treat trademark applications related to personal names. In the meantime, the question of whether Trump should be in receipt of such registrations (and whether there are more sinister political motives behind the granting of the registrations) will continue unabated, particularly as and when future marks proceed to registration.
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