Trump’s Chinese Trademark Registration: The Brand-New Ethics Concerns of Trading International Favors

By: Melanie Singer

On February 15, 2017, the Trump Organization was granted a great leap forward in its zeal to conduct business dealings in China.[1] The Chinese Trademark Office announced that it granted a trademark registration to a Trump construction services business after nearly a decade stalemate.[2] The timing of this registration is very curious, and caused several former presidential ethics advisors to voice their concerns.[3] Former White House ethics lawyers, Norman Eisen and Richard Painter,  expressed concerns over the Chinese government using President Trump’s business interests as leverage in the arena of international relations.[4] These concerns are not warrantless. The Trump Organization has 77 Chinese trademark registrations for various goods and services, but there are still 49 trademark applications pending.

A. Why This Win Is HUUGE

Trump originally applied for the trademark on December 7, 2006.[5] However, his application was rejected because a man named Dong Wei had filed a similar application about two weeks earlier.[6] Trump appealed the rejection to the Trademark Review and Adjudication Board, then to the Beijing Intermediate People’s Court, and finally to the Beijing High People’s Court. He lost at all three proceedings.[7] Simultaneously, Trump also tried and failed to invalidate Wei’s trademark to no avail.[8] A month before President Trump announced his candidacy, in May 2015, he lost again on appeal; nevertheless, on September 6, 2016 Trump’s luck reversed and the Chinese Trademark Office invalidated Wei’s trademark, which cleared the path for Trump’s trademark registration.[9]

In the United States trademarks are granted to those who use or intend to use the mark in commerce.[10] Conversely, in China trademarks are granted to whoever files the application for trademark registration first.[11] As a result of China’s first to file system, protecting intellectual property in China is very difficult. Additionally, in contrast to the United States, where having a trademark registration is not necessary to seek remedies for infringement,[12] in China one must have a registration to bring a lawsuit for trademark infringement.[13] This caveat to trademark protection in China, makes registration not only valuable, but necessary for a company to enforce and protect its intellectual property in China.[14]

B. Indicia of Trading International Favors?

The timing of Trump’s trademark registrations is very curious and worrisome for U.S.– Chinese relations. There are some foreign policy changes surrounding Trump’s Chinese trademark registration, which make the Trump Organization’s victory look like an international favor to President Trump rather than a coincidence. Soon after taking office, President Trump broke a long time diplomatic tradition and took a phone call from Taiwan’s President.[15] Nonetheless, just a few weeks later President Trump reassured Chinese President Xi Jinping that the United States would support the “One China” policy and that the U.S. sees Taiwan as part of China.[16]

C. Coincidence or Constitutional?: The Emoluments Clause

Moreover, the Chinese Trademark Office’s grant of President Trump’s trademark registration signals constitutional conflicts. Article 1, section 9 clause 8 of the United States Constitution states “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”[17] President Trump is already accused of violating this clause due to his existing ties to the Trump Organization.[18] This trademark registration, which occurred after he assumed the Office of the President, continues to fuel the ethical conflicts fire.[19] While it is still uncertain whether the registration was granted by China to gain favor with President Trump, this situation adds more conflict of interests and ethics concerns to the growing list under the Trump administration.[20]


[1]Jackie Northam, China Grants Trump A Valuable Trademark Registration, NPR (Feb. 16, 2017), http://www.npr.org/sections/thetwo-way/2017/02/16/515589191/china-grants-trump-a-valuable-trademark-registration.

[2] Joseph Mandour, Trump Trademark Victory in China Sparks Ethics Questions, Mandour & Assocs. (Feb. 23, 2017), http://www.mandourlaw.com/blog/trump-trademark-victory-china-sparks-ethics-questions/.

[3] Erika Kinetz, With Trump’s Win in China, Will Trump Toilets Get Flushed?, AP News (Feb. 14, 2017), https://apnews.com/c113029cef374b29b22e0d836f41a1ef.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Erika Kinetz, With Trump’s Win in China, Will Trump Toilets Get Flushed?, AP News (Feb. 14, 2017), https://apnews.com/c113029cef374b29b22e0d836f41a1ef.

[9] Id.

[10] The Lanham Act, 15 U.S.C. § 1051.

[11]Trademark Law of the People’s Republic of China (as amended up to Decision of August 30, 2013, of the Standing Committee of National People’s Congress on Amendments to the Trademark Law of the People’s Republic of China) text available at http://www.wipo.int/edocs/lexdocs/laws/en/cn/cn195en.pdf.

[12] The Lanham Act, 15 U.S.C. 1125(a).

[13] Brian J. Safran, A Critical Look At Western Perceptions Of China’s Intellectual Property System, 3 No. 2 U. Puerto Rico Bus. L.J. 135, 141 (2012).

[14] Eric R. Waltmire, How To Secure Your Client’s Brand Against Counterfeiting Operations In Asia, 22 DCBA Brief 46 (2009).

[15] Pedro Nicolaci da Costa, Trump has a shocking conflict of interest with China, Bus. Insider (Feb. 17, 2017), http://www.businessinsider.com/trumps-conflict-of-interest-with-china-2017-2.

[16] Id.

[17] U.S. Const. art. I, § 9 cl. 8; see David A. Fahrenthold & Jonathan O’Connell, What is the ‘Emoluments Clause’? Does it apply to President Trump?, Washington Post (Jan. 23, 2017), https://www.washingtonpost.com/politics/what-is-the-emoluments-clause-does-it-apply-to-president-trump/2017/01/23/12aa7808-e185-11e6-a547-5fb9411d332c_story.html?utm_term=.d57c7a0e3c11

[18] David A. Fahrenthold & Jonathan O’Connell, What is the ‘Emoluments Clause’? Does it apply to President Trump?, Washington Post (Jan. 23, 2017), https://www.washingtonpost.com/politics/what-is-the-emoluments-clause-does-it-apply-to-president-trump/2017/01/23/12aa7808-e185-11e6-a547-5fb9411d332c_story.html?utm_term=.d57c7a0e3c11

[19] Id.; see also Eric Lipton &Adam Liptak, Foreign Payments to Trump Firms Violate Constitution, Suit Will Claim, NY Times (Jan. 22,2017), https://www.nytimes.com/2017/01/22/us/politics/trump-foreign-payments-constitution-lawsuit.html?_r=0.

[20]Alina Selyukh & Lucia Maffei, Trump Ethics Monitor: Has The President Kept His Promises?, NPR (Feb. 17, 2017), http://www.npr.org/2017/02/17/513724796/trump-ethics-monitor-has-the-president-kept-his-promises.