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All the President’s Trademarks

August 8, 2017

In financial disclosure documents filed during the election, Donald Trump claimed his personal wealth exceeded $10 billion. Forbes put the number closer to $3.5 billion. Much of the discrepancy can be attributed to a particular set of assets: the president’s trademarks.

Whether you go by Trump’s own assertions or by more truth-sensitive metrics, however, few doubt the substantial value of his trademark portfolio (and the opaque licensing deals related thereto). Trump put the value of his brands at around $3.3 billion. Forbes estimated $230 million. Still significant, just not equivalent to, say, Burger King (brand value estimated around $3.7 billion).

The Presidential Trademark Portfolio

One of the first things we noticed when we dug into Trump’s trademark registrations is that, until recently, they were mostly owned by Donald J. Trump as an individual. That’s a slightly unusual arrangement, especially for brand owners who could potentially face contributory liabilities due to the actions of licensees. Did the decision not to vest ownership in a corporation have some strategic justification or was it simply the result of a casual attitude towards IP management? We can only guess. In any event, the Trump trademarks were all assigned in January, 2016 (around the time Trump became front-runner for the Republican nomination) and consolidated in a IP holding company called DTTM Operations, LLC.
 

As of the date of this article, there are 114 registrations and applications owned by DTTM Operations. Of these, 106 are “live” (either active registrations or pending applications that have not yet been abandoned). The vast majority (101 total/ 94 live) are for variations on the name TRUMP across a variety of goods and services: everything from TRUMP for vodka to SUCCESS BY TRUMP for cologne. Another 208 or so registrations and applications were owned by Donald personally but died before the 2016 transfer to DTTM, including defunct brands like TRUMP STEAKS and TRUMP UNIVERSITY.

In theory, protecting a mark like TRUMP could prove problematic, since the USPTO can reject a mark that is “primarily merely a surname.” Surname marks are considered insufficiently distinctive and treated the same way as descriptive marks. In practice, though, this rule can be difficult for Examiners to apply consistently (the qualifiers “primarily” and “merely” are key here), and surname marks frequently sail through to registration without much difficulty. In any case, given the notoriety of the TRUMP brand, the president could almost certainly register his marks by filing a declaration of acquired distinctiveness, though, based on our cursory review of DTTM’s registrations, this tactic was apparently unnecessary.

 

(For further discussion of trademark distinctiveness, check out our article Protecting Your Trademark or our Lexplainer video Can I “Trademark” That?)

 

Meanwhile, Ivanka Trump is busily building a trademark portfolio to rival her old man’s. Her IP holding company Ivanka Trump Marks, LLC is listed as owner on 80 registrations and applications, 47 of which are live. Like the president, the first daughter mainly sticks to marks based upon her own name, and nearly all of her registrations are for IVANKA TRUMP or IT in various stylizations and for various goods and services.

 

Even Ivanka’s mom, the president’s first wife Ivana, has gotten into the act. Ivana Trump has registered or applied for 35 marks, though only 5 of these are live. As with her daughter’s and ex-husband’s holdings, Ivana Trump’s marks are almost all narcissistic in nature. Interestingly, however, she also applied for the mark THE DONALD for cosmetics in 1999, 8 years after her divorce from said Donald.

 

ТРАМП and CHUANPU 川普

 

Of course, these registrations are merely the U.S. side of the intellectual property assets owned by the president and his family. Trump is also reportedly aggressive in protecting his trademarks overseas. For example, DTTM Operations owns 15 European Union trademark registrations (EU trademarks, formerly called community trademarks or CTMs, cover multiple European countries with a single registration).

 

These foreign trademark applications have been a source of concern in the media due to the conflicts of interest they potentially raise. Intellectual property is, after all, essentially a government grant. Will foreign intellectual property offices feel pressure to treat Trump’s trademark applications favorably so as not to antagonize the leader of the world’s sole superpower? How will safeguarding the president’s private IP assets factor into the U.S.’s international relationships? Those alarmed by the prospect of a commander-in-chief whose personal wealth depends in part on the actions of foreign governments point to 4 Trump trademark registrations granted by Rospatent, Russia’s intellectual property office, on November 8, 2016, the day that the applicant was elected president of the United States.

 

A Deceitful Culture

 

Trump’s Chinese trademarks have attracted particular attention. Trump  

apparently began filing trademark applications around 2006 in China and its specially administered region of Macau. Somewhere along the way, however, these applications ran into difficulty. While we don’t have access to the primary documents (and couldn’t read them if we did), our educated guess is that a Chinese applicant had swooped in and registered the TRUMP mark before Donald got there. By 2009, Trump was fighting a vigorous trademark battle in the Chinese courts. Again, we haven’t read the briefs, but we can speculate with some confidence that the issue was whether the TRUMP trademark was sufficiently famous in China to invalidate the prior registrant’s mark.

 

Trump lost, and the defeat infuriated him. In 2011, he sent a letter to Secretary of Commerce Gary Locke asking the U.S. government to intercede on his behalf. Over two rambling pages, Trump rails against both the judges that denied him his trademark rights and against China in general, calling the Chinese a “deceitful culture that sends underage children to the Olympics.”

 

Meanwhile, Trump's legal team continued to litigate the matter. Then, in February, 2017, following Trump’s ascension to the most powerful political office in the world, the Chinese courts finally ruled in his favor.

 

The optics of this reversal are certainly problematic, but nothing about Trump’s experience in China is particularly unusual. Unlike the United States, China has a “first to file” trademark system, meaning that an applicant can have priority to a mark even if they weren’t the first to use it in commerce. And, like many countries, China’s requirements when it comes to trademark use are much looser than in the U.S. As a result, it’s extremely common for Chinese speculators to apply for registrations on brands that are popular abroad but don’t yet have a presence in the Chinese market.

 

A Chinese court can invalidate these squatter registrations if it can be shown that the foreign mark was well-known in China prior to the application being filed. However, American companies tend to underestimate the threshold required to prove the fame of their mark. In his letter to Gary Locke, Trump talks about presenting the Chinese tribunal with “300 lbs. of paper” containing “articles about me.” But Chinese courts only consider consumer recognition of a mark within China, a distinction that often consigns piles of evidence presented by foreign brand owners to irrelevance. The fact that Trump's evidence apparently consisted mainly of materials "about [himself]" might point to another complication particular to his case. One can imagine a court reasonably drawing a distinction between the fame of Trump the man (which presumably would be irrelevant) and the fame of TRUMP the trademark.

 

Trump’s reversal of fortune would also sound familiar to businesses who have put in the investment to protect their trademark portfolios in China. China’s commercial use requirements might be more permissive than in the United States, but they are not non-existent. It’s not uncommon for a foreign business to wait out a Chinese trademark squatter and then invalidate the registrations based on non-use. We’re speculating again, but, given the 10+ years that have elapsed, it seems plausible that’s what happened in Trump’s case.

 

Our Trademark President

 

 Whether or not Trump’s political office had any effect on his Chinese trademark rights or any of his other intellectual property assets, there’s no doubt that we’ve entered uncharted legal territory. Surely, this is the first instance of a head of state whose name is protected internationally as a trademark and who profits handsomely from licensing that name to private businesses, foreign and domestic.

 

As the nation’s leader, Trump is practically a metonym for America, and there is something disorienting about having to consider the commercial value of our president’s name. The TRUMP brand is subject to the confidential terms of the myriad licensing agreements with which it’s entangled and dependent on the protection of government offices around the world. But it’s now also inextricably tied up with the fortunes of the current U.S. administration. It will be fascinating to see what novel IP issues arise from our first trademark presidency.

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