Will the President-elect use his power for personal gain? Analysis of the Trump trademark lawsuit in China

By: David Najera

One of the many issues set off after Donald Trump’s surprising victory in the 2016 presidential race involves the registration of the trademark TRUMP in the People’s Government of China. On November 24, 2006, Dong Wei, a Chinese citizen, registered the mark TRUMP before the Chinese Trademark Office under the International Class 37.[1] This Class encompasses services, such as construction, demolition, road building, mining, and drilling.[2] Almost a year later, on December 7, 2006, Mr. Trump sought to register the mark TRUMP in the International Class 37 to provide decoration and residential repair services.[3]

The Chinese Trademark Office rejected Mr. Trump’s trademark application due to its similarity with the TRUMP mark previously registered by Mr. Wei.[4] In November 2009, Mr. Trump appealed the denial of his trademark registration to the Trademark Review and Adjudication Board. After careful consideration, the Board affirmed the Chinese Trademark Office decision to reject Mr. Trump’s application because Mr. Wei had registered the mark TRUMP first.[5] Determined to register his mark, Mr. Trump sued to have the administrative decisions reviewed by the Intermediate People’s Court (trial court) and the Beijing Higher People’s Court (appellate court) arguing that TRUMP is a globally recognized trademark. In May 2015, the appellate court denied Mr. Trump’s allegations and affirmed the lower court and administrative decisions.

After firing his trademark attorneys, Mr. Trump decided to go a different route. In 2015, Mr. Wei sought to register the mark TRUMP under an undisclosed international class, but Mr. Trump immediately filed an opposition to the registration with the Trademark Review and Adjudication Board in an odd attempt to recycle the notoriety of the trademark argument he had previously made before the court. Surprisingly, this time the Trademark Review and Adjudication Board accepted his argument and limited Mr. Wei’s use of the mark TRUMP to just mining and drilling.[6]

The official opinion of the Trademark Review and Adjudication Board has yet to be published, but people close to the matter have stated that Mr. Trump successfully demonstrated that the mark TRUMP is widely recognized.[7] The mark TRUMP began acquiring greater international notoriety when Mr. Trump publicly announced he was running for president of the United States in 2015. He has been constantly in the news partly due to his inflammatory comments against immigrants, minorities, economic policy, as well as other controversial events in which he has been involved.

Mr. Trump’s thrust in the media stream has made him into a highly recognized public figure and has helped his mark become widely recognized, particularly in China. It is not clear if he will continue to personally benefit from his mark now that he will hold the most important public office in the United States, therefore solidifying his notoriety argument made before the Chinese Trademark Review and Adjudication Board. Whether a businessman should be allowed to expand his global trademark portfolio by reaping the benefits of his positions as US president remains unclear. The registration of his mark in China, however, constitutes an important precedent that will validate this claim.

The main question that remains unanswered is if the Trump Organization will become a trademark bully and if it will seek to invalidate trademarks that could create confusion with his widely known TRUMP mark. Only one thing is certain, we will witness a new scenario where courts could validate an individual’s position as a government official as a way to benefit his personal business endeavors

[1] See Pei Li, Donald Trump Scores Legal Win in China Trademark Dispute, WALL STREET JOURNAL (Nov. 14, 2016), http://www.wsj.com/articles/donald-trump-scores-legal-win-in-china-trademark-dispute-1479169494.

[2]See id.

[3] See id.

[4] Trump Wins Trademark case in China, Law Firm Says, GLOBAL TIMES (Nov. 15, 2016) http://www.globaltimes.cn/content/1018124.shtml.

[5] See id.

[6] See Mathew Dresden, China IP Protection: The Trump Issue, CHINA LAW BLOG (Nov. 15, 2106) http://www.chinalawblog.com/2016/11/china-ip-protection-the-trump-issue.html.

[7] See id.

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