Are Trump’s Trademarks Impeachable Intellectual Property?

March 16th, 2017 by Eric Lane Leave a reply »

Followers of this blog may have recognized through the years an implicit belief in a connection between the sometimes intricate rules of intellectual property and larger, high-level issues, principally climate change, but also business, competition, and innovation.

Indeed, I do believe that IP has an impact on those important issues and in those areas of human endeavor, otherwise why would I be blogging in this space?

One thing I never imagined, though, is that IP could potentially have implications for the fate of a head of state, particularly an American president.

Recent news reports (e.g., here, here and here) raise the fascinating prospect that Trump’s trademark filings in other countries (e.g., China, Russia) could be a basis for impeachment.

There are two theories of the case.  Each is rooted in the Emoluments Clause of the U.S. Constitution, which prohibits federal officials, including the president, from accepting anything of value from foreign governments unless explicitly approved by Congress.

First, the quid pro quo theory:

For a specific Trump trademark application or group of applications approved by another nation’s intellectual property office, one might ask whether that nation’s government was promised something in return, is obtaining something in return, or hopes to obtain something in return or otherwise influence the American president.

In February, the Chinese Trademark Office registered an important Trump trademark.  Diane Feinstein, a U.S. Senator from California, questioned the timing of the registration, noting that it came days after Trump reaffirmed the U.S. “One China” policy on a phone call with his Chinese counterpart.  This was a reversal by Trump after questioning the United States’ commitment to the policy during his election campaign.

At issue is Chinese Trademark Registration No. 14831415, registered February 14, 2017 for the TRUMP mark for various construction services.  According to its records history, the application was filed back in 2014, was initially accepted in March 2015, and then refused registration less than a month later.

The application was ultimately approved and published for opposition November 13, 2016, days after Trump won the U.S. presidential election, and then proceeded to registration.

Second, the valuable brand theory:

The second theory rests on the simple fact that Trump profits from his brands.  Arguably, then, when an intellectual property office – an agency of another nation’s government – grants Trump protection for his trademarks, that action constitutes something of value from that government.

Taking this broader view, as reported by recent articles in The New York Times and The Washington Post, it is relevant that the Chinese Trademark Office also approved and published for opposition 38 other trademark applications containing the term “TRUMP” on February 27 and March 6, 2017.

As pointed out by a trademark lawyer from the Sheppard Mullin law firm quoted in the Post piece, the timing of the approvals is not particularly suspicious.  These approved applications were filed in April 2016.  Under a recent revision to Chinese trademark law, the Chinese Trademark Office is supposed to complete examination of an application within nine months of its filing date.

It also should be noted that seven TRUMP applications filed around the same time were not initially approved.

Under the valuable brand theory, though, timing is less significant.  So long as decisions approving trademarks and actions registering them are taken by another nation while Trump is in office, there is potential value flowing from that nation to the American president.  And according to a recent AP story, Trump currently has 49 trademark applications pending in China.

This author admittedly lacks the constitutional law background to render any opinion on the the viability of either theory, so I will leave it to others with the requisite expertise to weigh in on whether Trump’s trademarks might constitute impeachable intellectual property.

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