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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Filed Under: china, donald trump, emoluments, trademark