Recent Trump victory in securing the Chinese trademark of his own name raises ethical questions

Should the President be continuing to pursue brand protections in foreign countries, or does doing so give rise to potential conflicts of interest?

The Trump brand is undoubtedly globally recognised and ‘the Donald’ has spent more than a decade protecting the use of his surname in China. While his endeavours were reasonable considering the commercial impact of his brand up to 2015, now that he is president Trump’s continued pursuit of his trademark around the globe poses constitutional and ethical dilemmas.

On 17 Feb 2017, the Chinese government granted the “Trump” brand trademark protections in the construction industry, concluding a decade long battle that, until last summer, the American businessman looked unlikely to ever win. Trump already has 77 marks registered under his own name in China, and after this victory could look to claw back control of more than 225 Trump-related marks held or sought by others in China, including Trump toilets, condoms, pacemakers and the fake “Trump International Hotel”.

China works on a first-come-first-serve basis for trademarks and when Trump first applied for rights to the Trump mark for construction services, he discovered a man called Dong Wei had beaten him by two weeks. After considerable – and, no doubt, costly – attempts by Trump to secure these rights, Trump has finally been successful, leading some to hailing this decision as the first of many likely victories many for Trump in China. In reaching this conclusion, some commentators have pointed to China’s tightening stance on trademarks, with a notable victory in December 2016 for Michael Jordan regarding the Chinese version of his name.

If the courts now reject new Trump applications from unrelated parties, this would spell bad news for existing Trump trademark holders such as Shenzhen Trump Industrial Co., which makes Trump-branded toilets (these are supplied widely, including to Zhongnanhai, the official residence of Chinese President Xi Jinping).

Despite China’s apparent new interest in protecting intellectual property rights, it is clear that politics played a part in this decision. The idea that foreign countries could use the President’s personal trademark rights as any kind of leverage or flattery has alarmed many in Washington. Three senators have written to Secretary of State Rex Tillerson, pointing out that Trump had been unsuccessful in his attempts for a decade and that “the possibility that the government of China is seeking to win President Trump’s favor by granting him special treatment for his businesses is disturbing” [sic]. One of the Senators, Dianne Feinstein, had previously argued the trademark deal could violate the U.S. Constitution, which bars government officials from accepting anything of value from foreign governments unless explicitly approved by Congress.

The prospect of countries around the world recognising Trump’s desire to control his brand and using this to secure favour with the President, especially in nations like China where the courts and bureaucracy are influenced by the government, is deeply troubling to some. Indeed, there are several high-profile figures, including former White House ethics lawyers, who are currently involved in a lawsuit against Trump alleging that his foreign business ties violate the constitution.