In Episode 34 of the “Law & Business” podcast, Anthony Verna talks to John Eastwood, a partner at Eiger Law in Taipei, Taiwan. They discuss the issuance of the Trump trademarks in China, if there appears to be any issues outside of the normal issuance of trademarks in China, and what any business moving into China should keep in mind about its trademarks.
Ivanka Trump probably didn’t get special treatment from the Chinese: Based on what John Eastwood has seen, it appears that Ivanka’s trademark applications (which will not have much use for her given that she’s announced that she’s shutting down her brand) were approved in a fairly normal time frame.
The Trump Organization probably did get special treatment, but that doesn’t mean that they shouldn’t have gotten the trademarks: The first part of the case involves the Trump Organization’s application for construction-related services that had languished for something like 10 years of struggles against the weight of several Chinese bad-faith filers who had apparently been using the “TRUMP” name to market all sorts of products.
Now, anybody who’s doing business in China knows that there’s a big industry. Chinese companies and individuals are extremely fast to file for iconic western marks — or even not-so-iconic marks. (Eiger Law and John Eastwood have a lot of clients that are up-and-coming or niche brands, and even they have problems.)
To some folks, it looked suspicious that China approved Trump’s trademark in the first month he was in office as president — it looked bad, like “oh, now you’re president of the United States, here’s your trademark.” This caused folks to worry about there being a breach of the Emoluments Clause, the part of the Constitution (Article 1, Sec. 9, Para. 8), which prohibits federal officeholders from getting anything of value from a foreign state.
Be there also must be an examination at what was happening right before Jan. 2017.
In December 2016, Michael Jordan got good news in a 15-year struggle to get back the Chinese name commonly used to refer to him — “QIAODAN” — from a Chinese company that used the name to sell sports clothing very successfully. Why? Because when Nike started selling Air Jordan products in China, only the English name “JORDAN” got registered by them — they didn’t bother to go for the Chinese name that everybody in China who cares about basketball chose to call him. The lesson for trademark owners is not to skip registering a Chinese name.
In October 2016, C.F. Martin & Co, the nearly 200-year-old company that’s made the iconic acoustic guitars used in blues, country, folk and rock, famous around the world, finally got back its marks after years of pursuing action through official channels. This was a case that had caused profound annoyance and frustration for IP professionals working in China, as it was used for years as an example of the Chinese government allowing a copycat local company to brand-jack a famous American brand. Part of the problem perhaps was that the old measure for “famous mark” protection was whether you were a true household name in China — you couldn’t just be famous within an industry, among musicians or music lovers, you had to be what John Eastwood used to call “Coca-Cola” famous but now could probably say is “Jordan” famous or “Trump” famous. But the trademark law was amended a few years ago to refer more generally to “bad-faith” trademark filings, and that gave some more room for action.
OK, so back to Trump — within a relatively quick period, one can see China clearing away a bunch of these cases on their appeals docket that, frankly speaking, were an embarrassment to the country. And you get them releasing their decision in January 2017 when he’d just become president for that mark for construction services, the one that had been part of the decade-long battle.
So where was the special treatment?
Well, a couple of months later in March 2017, China approved 38 more trademarks that the Trump Organization had applied for the previous year. Now, it is true that trademark registration times are getting better, but that was pretty quick — and it appears that they didn’t go through the same hassles that many trademark applicants go through with the very persnickety, extremely specific (and ever-changing) terms that the Chinese Trade Mark Office deems acceptable. The marks cover everything from golf clubs, hotels, restaurants, insurance, finance and real-estate companies, as you’d expect, but the applications also included some other areas sometimes harder to categorize, including spas, massage parlors, bodyguards and escort services.
But if we go back to the basics of human behavior, what we can probably take home is this:
- China was already taking some steps to clear away some of its embarrassing trademark cases, like Qiaodan and Martin guitars.
- Trump’s fame within China probably also skyrocketed in the past few years — making his trademark application for construction services a potential embarrassment.
- Once Trump’s older case was resolved, the CTMO had no really good reason to hold back on the other marks filed in 2016.
- They probably let the marks slide through a little easier than they normally would have, but it’s hard to measure that.