Let’s be clear: The notification was not a surprise. In fact, the decision to rule in Trump’s favor predates his election as president, and this week’s announcement was essentially a legal formality.
Nor does it seem likely that Trump will benefit financially from this decision while he remains president — in fact, the opposite could well be the case. While his organization does have long-standing plans to open hotels in China, real estate experts here say political sensitivities and the risks of upsets in the Sino-U.S. relationship mean investors will be steering well clear of his brand for the time being.
It does suggest, though, that China’s trademark laws are moving closer to international norms.
The news has also been used to reignite the debate about whether his business interests conflict with his role as president, and about whether his success in securing trademark rights violate the Constitution’s bar on receiving benefits from a foreign state.
Under Trump, U.S. relations with China have already been on something of a roller-coaster ride, with early tensions over policy toward Taiwan eased last week when Trump spoke by telephone to Chinese President Xi Jinping. The trademark case, though, appears to have proceeded independently of this process.
The decision to back Trump’s trademark claim for construction services relating to residential, business and hotel real estate was first flagged by China’s Trademark Office back in September, when a long-standing rival claim by a Chinese man called Dong Wei was invalidated.
The next step was the publication of Trump’s application for the ownership of the brand in China’s Trademark Gazette on Nov. 13, with the bureau declaring that it would be formally registered three months later if no further objections were received.
On Feb. 14 that finally happened, and Trump’s registration, lasting 10 years, was confirmed on the website of the China Trademark Office on Wednesday.
Over the past decade, Trump has lodged 126 trademark applications in China for the TRUMP name, on everything from pet-care products to computer software to lingerie to golf clubs, according to records at the Trademark Office. Some 77 have been registered, while 49 remain pending.
But there are plenty of other people out there in China who are also using the Trump name, with trademarks also registered for Trump condoms, Trump toilets, Trump pesticide and Trump paint, none bearing any direct business relation to the President.
The construction trademark registered by Dong Wei in 2006 had been a long-standing thorn in Trump’s side, and the subject of a protracted court battle and many setbacks.
But as we reported back in December, Trump’s attorneys in China insist there are sound legal reasons for their victory, lying in a provision of Chinese trademark law prohibiting the use of a public figure’s name as a trademark, as this can cause “confusion” and impact the person negatively.
In 2006, when Dong’s application was first approved, few people in China had any idea who Trump was. By 2016, Trump clearly passed the test as a public figure whose name deserved protection.
So while Trump’s newfound fame may have played an indirect influence on his September victory, there was “no direct influence from his position,” said Zhou Dandan of Unitalen Attorneys at Law in Beijing, who acted on his behalf.
“It is not possible that President Trump got favors from Chinese government,” she added.
Trump’s pending trademark claims may also benefit from a tightening of China’s trademark laws that has long been in the works, and mirrors a broader, steady improvement in the protection of intellectual property rights here.
As part of that process, the Supreme People’s Court issued guidelines in January on the handling of trademark cases specifically outlawing the use of the names of public figures in areas including politics, economy, culture and religion.
The new rules state that trademarking public figures’ names is forbidden, due to the “negative influence” on the public interest and social order that it could cause, state news agency Xinhua reported, adding the decision underlined the court’s determination to “foster an honest business environment and deal with malicious trademark infringements.”
Trump is far from the only foreign public figure to have fought trademark battles in China, a country where faking foreign brands has long been a profitable business practice.
Nevertheless, times are changing. In December, Michael Jordan won a victory of his own here, when the Supreme Court revoked the right of sportswear-maker Qiaodan Sports to use his last name written in Chinese characters, ruling that Jordan’s name is “well-recognized” here and that he should have the legal right to it.
Similarly, it would be wrong to suppose the guidelines issued in January were “tailored for Trump,” said Bao Zhongdong, a trademark infringement lawyer with the Longan Law Firm in Shanghai, explaining they had been through a long drafting and review process.
“It is not possible they were drafted, reviewed and announced just because of Trump,” he said. “It is possible that the frequency of name infringement trademark lawsuits in recent years, like Michael Jordan’s case and Trump’s case, garnered more attention and signaled the urgency for more functional legal guidelines. But the new guidelines were not determined by one or two people’s cases, no matter who they are.”
In an email to the Associated Press, Alan Garten, chief legal officer of the Trump Organization, said Trump’s trademark activity in China predates his election and added that Trump has turned management of his company over to his children and a team of executives in order to remove himself from his business and its trademark portfolio.
“The only mark we were seeking was one in the related class of construction which someone was improperly squatting on,” he wrote.
Trump has also promised that his business will do “no new foreign deals” during his presidency.
But Norman Eisen, who served as chief White House ethics lawyer for President Barack Obama, argued that China could use Trump’s desire to control his brand to influence policy, especially as its courts and bureaucracy reflect the will of the Communist Party.
“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,” Eisen told the Associated Press. “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.”
Eisen is involved in a lawsuit alleging that Trump’s foreign business ties violate the Constitution. Trump has dismissed the lawsuit as “totally without merit.”
Congcong Zhang contributed to this report.
This post has been updated to specify that Trump’s attorney said his company would not make new foreign deals, retracting an earlier pledge to do “no new deals.”