China’s Trademarks Gift To Trump May Breach US Constitution

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“I think that’s really odd. That makes you look and think: ‘Somebody got some instructions at the trademark office that these should be approved.’”

Chinese President and trump

China has granted preliminary approval for 38 new Trump trademarks, leading critics to wonder if Donald Trump received any special treatment by virtue of him being president.

The trademark covers businesses including spas, massage parlors, concierge services, golf clubs, hotels, finance, insurance and real estate companies, retail shops, restaurants and bodyguard services, and even escort services, among other things — although it is unclear whether any such businesses will materialize in China.

Trump’s lawyers in China applied for the trademarks in April 2016 as Trump, during his presidential campaign, lambasted China, accusing it of stealing American jobs, brining sub-standard products into the country and manipulating currency.

But in February, the Chinese government announced it was granting Trump the right to protect his name brand for construction projects, after a 10-year battle. The approval was given days after Trump agreed to support “One China” policy in a call with Chinese President Xi Jinping.

If no one objects, the trademarks will be formally registered after 90 days. All but three are in the president’s own name.

The president vowed to refrain from new foreign deals while in office and allegedly handed over his business management to his two sons, Donald Trump Jr. and Eric Trump. He was urged to divest from his business and place his assets in a blind trust, but he has not done so. The president can revoke the trust from his sons at any time and stands to benefit from it financially once he ends his term.

Ethics experts also believe Trump turning over his assets to his son is not enough and if the marks received any special treatment due to their association with the president, it would violate the Constitution unless they are approved by the Congress.

Congress has not yet done so and the timing for the trademark approval is very suspicious.

“This is an astonishing development,” Sen. Ben Cardin (D-MD), the ranking member of the Senate Foreign Relations Committee, said in a written statement. “It’s clear to me that officials in Beijing have come to appreciate the potential return on investments for China in having a positive, personal business relationship with the president of the United States, who has not taken appropriate and transparent steps to completely sever his relationship from the corporation that bears his name.”

Matthew Dresden, a lawyer in Seattle who specializes in Chinese intellectual property law, said it was unusuall that all the trademarks were “approved at once.”

“I think that’s really odd. That makes you look and think: ‘Somebody got some instructions at the trademark office that these should be approved,’” Dresden said.

Dan Plane, a director at Simone IP Services, a Hong Kong intellectual property consultancy, said something similar.

“For all these marks to sail through so quickly and cleanly, with no similar marks, no identical marks, no issues with specifications — boy, it’s weird,” he said

Trump Tower

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“A routine trademark, patent or copyright from a foreign government is likely not an unconstitutional emolument, but with so many trademarks being granted over such a short time period, the question arises as to whether there is an accommodation in at least some of them,” Richard Painter, who was a chief ethics lawyer for George W. Bush, said.

Scott Palmer, an intellectual property lawyer at Sheppard, Mullin, Richter & Hampton, a firm that represents American corporations in China, came to the defence of Trump and downplayed the significance of the timing.

“There’s nothing inherent in that timing that is questionable or strange or should be viewed as out of the ordinary,” Palmer said. “The Trademark Office has been working on getting this timing right for a few years now, and the fact that they are hitting the target doesn’t mean they are likely to have played favorites.”

Chief legal officer of Trump Organization Alan Garten also defended the move, stating the company has enforced its intellectual property rights for more than a decade in China and began registering trademarks years before Trump ran for president.

“The latest registrations are a natural result of those longstanding, diligent efforts and any suggestion to the contrary demonstrates a complete disregard of the facts as well as a lack of understanding of international trademark law,” he said in an email.

Spring Chang, a founding partner at Chang Tsi & Partners, a Beijing law firm that represents trump’s company, said “I don’t see any special treatment to the cases of my clients so far,” she added. “I think they’re very fair and the examination standard is very equal for every applicant.” 

However, Sen. Cardin does not think it is quite so fair.

"They're trying to curry favor with the president,” he said.

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