Wednesday, February 22, 2017
A recent article on the ThinkProgress website has created something of a stir. The article asserts that China's recent grant to Donald Trump of a trademark in "Trump" is especially questionable under the Emoluments Clause because China violated its own law in granting the trademark, thereby making it clear that the trademark was a special favor to Trump: "The apparent preferential treatment for the U.S. president could land Trump in legal trouble back at home." Yesterday I received requests from people at two different Congressional committees asking for references to experts in Chinese trademark law who could clarify the issue, so people are definitely watching this closely.
The bottom line: It's implausible to say that China violated its own law here. Political factors may of course have played a role, but there's no violation of law that would constitute a smoking gun. Let me explain.
The claim that China violated its own law rests on a particular reading of China's Trademark Law and Trademark Review and Hearing Standards (TRHS). Article 10 of the Trademark Law says that a trademark may not be granted where it would harm social mores or have other bad influences (有害于社会主义道德风尚或者有其他不良影响的). Part 1, Sec. 9(2)(1) of the TRHS puts flesh on the bones of Art. 10 by defining trademarks having a "bad political influence" as, inter alia, those which are identical or similar to the names of leaders of states, regions, or political international organizations (与国家、地区或者政治性国际组织领导人姓名相同或近似的).
Seems pretty open and shut, right? Unfortunately, no -- and the authors of the article do not seem to have consulted a single expert on Chinese trademark law when they provided us with their interpretation of it. Talk about chutzpah. (They quote some language in a blog post by Mark Cohen, who is an expert, but all Cohen is doing is paraphrasing the legal standard, and in that blog post he specifically declines to opine on this particular case. They also consult and get some quotes from Matthew Dresden, a Chinese IP expert in Seattle, but Dresden never offers the opinion that the trademark grant violates China's own law.)
We had some discussion of this matter on the Chinalaw listserv the other day, and with the permission of Doug Clark, a barrister in Hong Kong specializing in Chinese trademark law, I reproduce his (lightly edited) view below. The main thing to note is that the intent of the prohibition is obviously to avoid offending foreign leaders and causing political problems by allowing others to trademark their names. Had the rulemakers contemplated that a foreign leader might be a celebrity wanting a trademark in their own name, surely they would have written that exception into the law. In addition, there are other obvious exceptions to what seems to be a rigid rule. The general point is that you should consult people who know what they are talking about before stating that some law requires some result.
I do not consider the decision to register Trump violates the standard. It is an application that has been pending for many years. It is not unknown for appellate bodies to disagree with lower-down decisions. Michael Jordan was also recently successful in some long drawn out trademark cases over the Chinese translation of his name. (https://www.nytimes.com/2016/12/07/business/international/china-michael-jordan-trademark-lawsuit.html)
The Trump application was also delayed because of a blocking registration.
The prohibition on registration of marks of political figures is to avoid disparaging trademarks being registered. It cannot be absolute. Some names are quite common (Ford, Bush, May) and you could not and should not block registration of all marks. (Should Ford Motors be stripped of its trade mark or not allowed to file new trademarks because Gerald Ford was president? No trademark for “Black Bush” Whiskey?) Trump falls in this category. It does have another meaning. In any event, in this case it is the Trump organisation (owned by Donald Trump) that is registering the mark and it is therefore not disparaging.
Having said all that, it is very likely that the decision was politicised on the Chinese side. There can be no doubt it would have been raised right up to the highest levels. Any unfavourable decision would possibly provoke Trump and given him a reason to attack China, so allowing the registration is certainly good diplomacy and politics.
Needless to say, I am not an expert on Chinese trademark law. If anyone reading this has well-founded reasons for disagreeing with Clark's analysis, please let me know by email (dclarke (at) law.gwu.edu) and I'll be glad to give you equal time.