There is a Trump toilet, a Trump condom, a Trump pacemaker and even a Trump International Hotel among hundreds of trademarks in China that do not belong to US President Donald Trump.
However, after a decade of grinding battle in China’s courts, the president was expected to get an unlikely win this week — the rights to his own name.
Trump’s late victory in the fight to wrest back one sliver of his brand — the trademark for building construction services — could signal a shift in fortune for the US president’s intellectual property in China.
At stake are 49 pending trademark applications — all made during his campaign — and 77 marks already registered in his name, most of which will come up for renewal during his term. The case also raises the possibility that the president could claw back control of more than 225 Trump-related marks in China that do not belong to him.
To some, it also illustrates how Trump’s efforts to consolidate control over his brand could be used to extend or withhold favor, especially in a country such as China, where the courts and bureaucracy are influenced by the Chinese Communist Party, and by design reflect the leadership’s political imperatives.
Trump’s foreign trademarks have raised red flags with ethics lawyers across the political spectrum who say they present grave conflicts of interest and might violate the emoluments clause of the US constitution, which bars public servants from accepting anything of value from foreign governments unless explicitly approved by US Congress.
“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,” said Norman Eisen, who served as chief White House ethics lawyer for former US president Barack Obama. “It’s fair to conclude that this is an effort to influence Mr Trump that is relatively inexpensive for the Chinese, potentially very valuable to him, but it could be very costly for the United States.”
Richard Painter, chief White House ethics lawyer under former US president George W. Bush, called the situation “highly improper.”
Since foreign governments know Trump cares deeply about his family’s business, “they will give him what he wants and they will expect stuff in return,” Painter said.
Eisen and Painter are involved in a lawsuit alleging that Trump’s foreign business ties violate the US constitution.
Trump has dismissed the lawsuit as “totally without merit.”
Trump Organization chief legal officer Alan Garten said the Chinese trademarks were already in the works before the election and the president has turned management of his company over to his children and a team of executives.
In an e-mail, Garten wrote: “The only mark we were seeking was one in the related class of construction which someone was improperly squatting on.”
The precise value of the trademarks is a matter of debate, but Trump himself thought his brands in China were worth enough to defend them, according to a 2011 letter he wrote then-US secretary of commerce Gary Locke about a trademark dispute in Macau.
“I spent hundreds of thousands of dollars in legal fees to secure my own name and globally recognized brand from Chinese individuals who seek to trade off my reputation,” Trump wrote.
In May 2009, he dispatched a team with 135kg of evidence to prove that Donald Trump was, in fact, famous. It did not work. Trump railed against the courts as “faithless, corrupt and tainted.”
“The Trump name resonates throughout the entire world,” Trump wrote.
“According to their ignorant council of judges, it appears the only two places in the world I am not well known are China and Macao,” he added, using an alternative spelling for the territory.
That might be changing.
As president, Trump’s elevated profile in China is likely to make it easier to protect his brand, said Zhou Dandan (周丹丹), a lawyer with Unitalen Attorneys at Law in Beijing, which has worked for Trump since 2006.
Trademark authorities would almost certainly reject new “Trump” applications from unrelated parties, she said, and might take back rights from existing “Trump” trademark holders.
That is what happened in the case nearing completion this week.
Trump applied for rights to the Trump mark for construction services on Dec. 7, 2006, but a man named Dong Wei (董偉) had filed a similar application about two weeks earlier.
China works on a first-come-first-served basis for trademarks, and the Chinese Trademark Office rejected Trump’s application.
Trump appealed to China’s Trademark Review and Adjudication Board, then to the Beijing Intermediate People’s Court, and finally to the Beijing High People’s Court. He lost, lost and lost again.
Separately, he tried to invalidate Dong’s trademark, but failed, and failed again on appeal, according to Matthew Dresden, a China intellectual property attorney at Harris Bricken in Seattle, who has studied the case.
The last time courts ruled against Trump in the construction-services case was May 2015, the month before he declared his candidacy.
Then Trump’s lawyers simply went back to the Trademark Review and Adjudication Board, which had already rejected their case, and again asked them to invalidate Dong’s trademark, Dresden said.
This time it worked. On Sept. 6, last year, the Trademark Office published its invalidation of Dong’s trademark for construction services. Dong could not be reached for comment.
That decision cleared the way for Trump’s own claim to move ahead. Trump’s mark was published in China’s Trademark Gazette on Nov. 13 last year, less than one week after he won the US presidential election. Interested parties have three months to object. If no one does, the trademark will be registered to Trump on Tuesday next week.
Why is Trump winning in China’s bureaucracy now, after years of failure? China’s State Administration for Industry and Commerce and Ministry of Foreign Affairs did not reply to requests for comment.
Some lawyers point to a general hardening in China’s stance on trademark squatting.
Last month, China’s Supreme People’s Court released a legal interpretation stipulating that names of “political, economic, cultural, religious, national and other public figures” should not be trademarked.
That notice came after a December last year ruling returned the Chinese version of Michael Jordan’s name from Qiaodan Sports Co to the basketball star.
In Mandarin, Qiaodan sounds like Jordan.
Others say politics almost certainly played a role. By last year, the nature of the dispute had changed. Chinese authorities were now ruling on a case that pitted a guy from Liaoning Province against a man running for president of the US.
“It would be hard to imagine that the judges, the Trademark Office and/or the Trademark Review and Adjudication Board were acting without some kind of guidance,” said Dan Plane, a director at Simone IP Services, a Hong Kong intellectual property consultancy.
He added that the outcome of future cases could depend on Trump’s relationship with Beijing.
“If there’s a clear decision made by an angry Chinese government to stop giving broad protection to the Trump name in China, Trump’s ability to defend or enforce his name could be quite limited,” Plane said.
Meanwhile, the makers of Trump-branded luxury toilets at Shenzhen Trump Industrial Co face a potent new potential adversary. They say they will defend their brand, even if it means taking on the US president.
The firm’s cofounder Zhong Jiye (鍾傑) said his Trump toilet, which dates to 2002, has nothing to do with President Trump.
The Chinese name brings together ideas of innovation and popularity, he said.
And in English, the “U” makes a nice toilet-seat shape logo.
Trump toilets for the home can do pregnancy tests, while models for public use have disposable seat covers for improved hygiene. The company said sales rose more than 50 percent last year and an international expansion is in the works — perhaps under a different brand now that Trump is president.
People use Trump toilets some 100 million times a year, Zhong said.
Among them, are customers at Zhongnanhai, where Chinese President Xi Jinping (習近平) lives, he said.
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