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China IP Protection: The Trump Issue

Tuesday, November 15, 2016 5:11
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China trademark registrationSusan Finder’s estimable Supreme People’s Court Monitor wrote yesterday about Donald Trump’s trademark woes in China.

Back in December 7, 2006, Trump filed a China trademark application for the word mark “TRUMP” in Class 37, covering services such as building construction, repair, and installation services. Unfortunately for Trump, on November 24, 2016, an individual named Dong Wei (董伟) had filed his own application for “TRUMP” in class 37 covering services such as building construction supervision, construction, demolition, road building, mining, and drilling.

Trump’s application was rejected by the Chinese Trademark Office (CTMO) with respect to the goods similar to those on Dong Wei’s application. Trump then appealed to the Trademark Review and Adjudication Board and lost. He then appealed to the Beijing Intermediate People’s Court and lost again. He then appealed to the Beijing Higher People’s Court and he lost yet again. Having exhausted his options in court, Trump made a decision familiar to fans of reality television: he fired his trademark attorneys. (To be fair, he switched over to the firm that handles his daughter Ivanka’s trademark work in China, and it is possible that he just wanted to consolidate the family work.)

Although Trump’s attorneys had contended that “TRUMP” was a well-known mark, the Beijing Higher People’s Court did not even address this argument. To them it was a simple decision based on a simple principle: Dong Wei filed his application first.

Think about it: the Beijing Higher People’s Court did not even deign to consider the argument that “TRUMP” was a well-known mark. This should give pause to anyone who thinks they can defeat trademark squatters by arguing that their unregistered mark is famous in China. Virtually the only way a mark can become well-known in China is for it to be used in China, and if you use your mark in China without registering it, you’re playing with fire.

It might be a different situation if Dong Wei were to have filed his application today, given the massive coverage the recent election has received in China. But back in 2006, Donald Trump was just a billionaire real estate mogul with orange hair and a popular reality tv show on NBC. You know, nobody special.

As Mark Cohen’s China IPR blog has pointed out, Dong Wei is hardly the only third party to file TRUMP-related trademark applications in China. A quick China trademark search reveals dozens of applications for “TRUMP,” “TRUMP TOWER,” “TRUMP PLAZA,” and so forth, as well as innumerable Chinese variations. Some of those have been filed by Donald Trump himself, but the battle has already been lost. If he cared about protecting his name – his willingness to litigate over this shows that he does – he should have taken the Starbucks approach and filed applications in every class covering every subclass. Now Trump is left fighting a rearguard action.

Unlike most trademark squatter scenarios, in which trademarks are held for ransom by squatters with no intention of ever using them, I can imagine that many of these marks will actually be used in commerce.

Once again, the moral of this China trademark story is that you had better register your trademark now, before someone else does it for you.

Update: According to the Wall Street Journal and information just made available on the CTMO website, Trump appears to have prevailed in a separately prosecuted attempt to invalidate Dong Wei’s trademark. Now that Dong Wei’s trademark is no longer an obstacle, Trump has secured preliminary approval for a “TRUMP” mark that covers similar services as Dong Wei’s. If no one files an opposition within 90 days, Trump’s mark will proceed to registration. It would appear, then, that the one exception to our standard advice regarding trademark registration is if you are elected President of the United States of America.

We’ll update this story (or write a new post) once we have more information.

We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.


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