China Busily Approving 'Trump' Trademarks With Stunning Speed

from the real-subtle,-guys dept

Last month, we discussed the stark reversal by the Chinese government in the matter of many trademarks for President Trump’s businesses. In that post, we tried to tackle the question of whether China’s sudden approval for a “Trump” trademark on construction services was a violation of the emoluments clause. How you answer this question tends to fall along political fault lines, which is unfortunate. Notably, those that did not find a violation by the trademark approval often suggested that this was one trademark that had been in dispute for years, long before Trump began his campaign for the presidency. Is one single trademark being granted to a sitting President that claims to no longer control his business directly really going to amount to a constitutional violation? Many didn’t think so.

But now the conversation will change drastically, as the Chinese government has given preliminary approval on thirty-eight more trademarks to the Trump business, just in the last few weeks. And these trademark applications were filed during the Trump campaign, mind you.

China has granted preliminary approval for 38 new Trump trademarks, a move that offers a potential business foothold for President Donald Trump’s family company and protects his name in a country notorious for counterfeiters. Trump’s lawyers in China applied for the marks in April 2016, as Trump railed against China at campaign rallies, accusing it of currency manipulation and stealing U.S. jobs. Critics maintain that Trump’s swelling portfolio of China trademarks raises the possibility of conflicts of interest.

Dan Plane, a director at Simone IP Services, a Hong Kong intellectual property consultancy, said he had never seen so many applications approved so expeditiously.

Plane said he would be “very, very surprised” if officials from the ruling Communist Party were not monitoring Trump’s intellectual property interests. “This is just way over your average trademark examiner’s pay grade,” he said.

Now, I will stipulate that it’s not uncommon for American businesses to file for trademarks in China as a matter of a defensive posture. The country is notorious for the use of known marks by Chinese businesses clearly trading off of the original marks’ fame. But that doesn’t really matter for the purposes of an emoluments discussion. The fact is that before he was elected, Trump only lost when it came to his trademark applications in China. Now his business, from which he has not divested, and the trust for which he can disolve at any time, is winning at every turn. Given both the volume of applications and the speed with which they’re being approved, it seems the famously ham-fisted Chinese government isn’t really trying to bother hiding how much favor it’s suddenly heaping upon President Trump’s business.

And there are those on both sides of the political aisle pointing at what’s going on and raising the emoluments clause again.

Richard Painter, who served as chief ethics lawyer for President George W. Bush, said the volume of new approvals raised red flags.

“A routine trademark, patent or copyright from a foreign government is likely not an unconstitutional emolument, but with so many trademarks being granted over such a short time period, the question arises as to whether there is an accommodation in at least some of them,” he said.

Painter and Norman Eisen, who served as chief White House ethics lawyer for President Barack Obama, are involved in a lawsuit alleging that Trump’s foreign business ties violate the U.S. Constitution. Trump has dismissed the lawsuit as “totally without merit.”

In fact, spokespeople for Trump’s business have claimed that as well, essentially stating that there is nothing to see here, it’s business as usual, move along. But that doesn’t square with history, nor how that history suddenly changed course to coincide with Trump becoming a political figure. Thirty-eight trademarks being approved in a matter of weeks when he couldn’t get one approved for years. By a foreign government. Whatever your leanings, the question about whether this violates the Constitution certainly can’t be called crazy any longer.

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Comments on “China Busily Approving 'Trump' Trademarks With Stunning Speed”

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44 Comments
Anonymous Anonymous Coward (profile) says:

Trademark Usage

“including branded spas, massage parlors, golf clubs, hotels, insurance, finance and real estate companies, retail shops, restaurants, bars, and private bodyguard and escort services.”

I think I know that trademarks need to be used in commerce in order to be valid, at least here in the US, which would applying for a ‘defensive’ mark questionable. But what about China? Two of those listed above stand out as marks that the President of the United States probably shouldn’t be associated with.

The other question comes to mind, if they are not defensive, what is he going to use them for?

TechDescartes (profile) says:

Re: Trademark Usage

To register a trademark in the U.S., you either have to be using it in commerce or have a bona fide intent to use. In China, it is possible to register defensively, as stated in the article:

Many companies register trademarks in China only to prevent others from using their name inappropriately.

Janet Satterthwaite, a global trademark attorney and partner at Potomac Law Group in Washington, says nothing about Trump seeking and receiving trademarks in China raises any immediate red flags.

"Especially in China, you absolutely need to register defensively so that people do not exploit your name for commercial gain," she said. She that that while the marks are moving faster than in her own experience, "it does not look like China did anything extraordinary here."

In other words, Trump may have no intention to use any of these marks. There is no way to know from the filings themselves.

Also, if you want to protect the English word and the Chinese characters that sound like the English word, you have to file registrations for both. Just ask Michael Jordan, who spent years gaining the rights to 乔丹 (Qiáodān, pronounced cheow-dahn).

Here, at least some of the trademarks are "duplicates"—the English spelling and the Chinese-character equivalent. For example, Trump registered both Trump Tower and 川普大厦 (Chuān pǔ dàshà, , loosely translated "Chuanpu" Building). Thus, it’s likely that there are 19 "trademarks"—one for the English word and one for the Chinese "equivalent".

Not that this changes the substance of the argument, but I thought it might be helpful.

TechDescartes (profile) says:

Unfounded Leaps

Tim, you quote Richard Painter as saying this isn’t a violation of the emoluments clause:

"A routine trademark, patent or copyright from a foreign government is likely not an unconstitutional emolument, but with so many trademarks being granted over such a short time period, the question arises as to whether there is an accommodation in at least some of them," he said.

It would seem that you agree with Painter, since you quote him and don’t state otherwise. But you then conclude, "Whatever your leanings, the question about whether this violates the Constitution certainly can’t be called crazy any longer."

If China granting the trademarks doesn’t violate the emoluments clause, what clause are you saying it violates?

Anonymous Coward says:

Re: Unfounded Leaps

Let’s deconstruct the quote:
“A routine trademark, patent or copyright from a foreign government is likely not an unconstitutional emolument”
So, one trademark is routine, let it go.
“but with so many trademarks being granted over such a short time period, the question arises as to whether there is an accommodation in at least some of them,”
However, we aren’t talking one, we’re talking 38. That is where the emoluments clause may be being violated.

TechDescartes (profile) says:

Re: Re: Unfounded Leaps

Your deconstruction overlooks the fact that Painter switches from "emolument" in the first half of the sentence to "accommodation" in the second half. Painter doesn’t say, "With so many trademarks being granted over such a short time period, the question arises as to whether there is an emolument."

Indeed, the Emoluments Clause wouldn’t support that argument:

No Title of Nobility shall be granted by the United States: And 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.

Emoluments are prohibited, whether they are provided quickly or repeatedly.

Eldakka (profile) says:

Re: Re: Re: Unfounded Leaps

Emolument:

The profit arising from office, employment, or labor; that which is received as a compensation for services, or which is annexed to the possession of office as salary, fees, and perquisites. Any perquisite, advantage, profit, or gain arising from the possession of an office.

In this context an accommodation is synonymous with advantage and gain.

TechDescartes (profile) says:

Re: Re: Re:2 Unfounded Leaps

The context doesn’t support that either. What you are trying to say is that, in the first half he said "emolument", but in the second half, instead of just saying "emolument" again, he said "accommodations" which means "advantage" or "gain" which means "emolument".

Bear in mind that Painter has sued Trump over violations of the Emoluments Clause. It’s not like he’s afraid to say "emoluments" when he means "emoluments". The point is, Painter doesn’t think this violates the Emoluments Clause. If he did, he would have been the first to tell you.

Anonymous Coward says:

Took a long time to make the rubber stamp pattern, now they're into mass production.

Seriously — I can’t take you seriously. This is parody, right? And ya got me, right up to denying that you’re crazy, just too much.

You’re way BELOW “conspiracy theorist” or “kook” with this: you’re only WISHING up a scandal.

I believe most people will roll their eyes that THIS is at all a Constitutional question — and many will view it as a positive.

THIS is why I read Techdirt, though: it’s like seeing the world from tumblebug level; they frantically roll their precious little balls of dung along and every tuft of grass is major obstacle.

While I have to deal with the human world where “GOOGLE SCHMIDT: Big data so powerful, nations will fight over it…”

andy says:

Re: Took a long time to make the rubber stamp pattern, now they're into mass production.

Wow slow don there, this is about a President that fought for many years to get trademarks on his name and was refused every single time , suddenly he is president and within 8 weeks all trademarks he applied for are approved all 38 of them, If you do not see this as a form of collusion and using the power of the presidency to gain money and power in another country you are one uneducated person, but then again the way you try to string words together seems to be lacking.

Anonymous Coward says:

Took a long time to make the rubber stamp pattern, now they're into mass production.

Seriously — I can’t take you seriously. This is parody, right? And ya got me, right up to denying that you’re crazy, just too much.

You’re way BELOW “conspiracy theorist” or “kook” with this: you’re only WISHING up a scandal.

I believe most people will roll their eyes that THIS is at all a Constitutional question — and many will view it as a positive.

THIS is why I read Techdirt, though: it’s like seeing the world from tumblebug level; they frantically roll their precious little balls of dung along and every tuft of grass is major obstacle.

While I have to deal with the human world where “GOOGLE SCHMIDT: Big data so powerful, nations will fight over it…”

Anonymous Coward says:

Re: Took a long time to make the rubber stamp pattern, now they're into mass production.

You’re way BELOW "conspiracy theorist" or "kook" with this: you’re only WISHING up a scandal.

I agree 10,000 per cent! Absolutely sheer kookery! Just look at how many trademarks Obama got from China!!!

/sarc

Anonymous Coward says:

Re: Took a long time to make the rubber stamp pattern, now they're into mass production.

So Trump campaigns on tacking on huge tariffs to Chinese imports (among other things), gets elected, quietly backs down on most of the anti-Chinese rhetoric and then totally coincidentally starts getting his trademark applications fast-tracked through Chinese approval while those of others languish as his had prior to getting elected.

How can anyone from either side of the aisle see that and not raise an eyebrow?

If it is indeed the Chinese government giving Trump special favors then it is clearly unconstitutional (yeah, that’s in there).

I.T. Guy says:

Re: Re: Re: Took a long time to make the rubber stamp pattern, now they're into mass production.

You… can show a recent link/Tweet where he is still supporting huge(45%)tariffs to Chinese imports?

https://qz.com/595618/trump-is-caught-lying-about-his-china-tariff-proposal-and-it-would-hurt-his-supporters-the-most/

Asked if about his plan to raise a tariff on imported Chinese goods to 45%, reported by the New York Times, Trump said, “That’s wrong. They were wrong. It’s the New York Times, they are always wrong.”

He said earlier:
I would tax China coming in—products coming in. I would do a tariff. And they do it to us. We have to be smart. I’m a free trader. I’m a free trader. And some of the people would say, ‘Oh, it’s terrible.’ I’m a free trader. I love free trade. But it’s got to be reasonably fair. I would do a tax, and the tax—let me tell you what the tax should be. The tax should be 45 percent.

Seems the former is backtracking no?

Digitari says:

Cultural differences

My brother used to travel to China 3-4 times a year, he was a “buyer/quality Assurance” guy for a Tech firm in Austin, Every single time he was there the first night a “friendly” girl would be sent to his room from the supplier. He would always refuse (so he said) the offered “service”. It was just the price of doing Biz in China. (for those of you the may say “That never happened to me”; possibly you were not high enough up the American Corporate ladder for them to care)

Anonymous Coward says:

Well of course it is a violation of the emolument clause, aka Title of Nobility Clause …. without the consent of Congress – well there’s the problem.

No title of nobility shall be granted by the United States: and 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.

Wendy Cockcroft (user link) says:

Re: Re:

Now considering Trump pretty much OWNS Congress, it’s an academic exercise unless the people (on both sides) who want him gone can garner enough support. As long as his cult continues, forget any hope of seeing any charges. When his cult begins to wane, the knives will come out. It’ll be interesting to see who does the stabbing.

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