Trump's Trademark Tribulations

It is well known that US President-Elect Donald Trump owns an international real estate empire and there has already been speculation that if he maintains his business interests he could violate the US Constitution when he becomes President.

The US Constitution prohibits the Federal government from granting titles of nobility, and restricts members of the government from receiving gifts, emoluments, offices or titles from foreign states without the consent of the United States Congress. The Emoluments Clause was designed to prevent corrupting foreign influences on the office of President.

Mr Trump could potentially violate the Emoluments Clause whenever one of his businesses makes a profit on a transaction with any foreign state or foreign-owned entity.

Trademark registrations are included in this clause and there is a view that a grant of a trademark could be held to be a privilege bestowed by a foreign government. This is significant as Trump's trademark portfolio is estimated to be worth a third of his 10 billion dollar fortune.

Donald Trump holds registered trademarks throughout the world. Interestingly, considering his strident language on relations with China during the election campaign, he has recently filed a number of trademarks in China to protect his businesses in that country against trademark pirates. In China many trademark pirates take advantage of the first to file rule, which gives trademark rights to the first to file a trademark, rather than the first to use a trademark.

Trump fell foul of this rule when his first trademark registration in China was refused due to an earlier registration which was filed by a third party to take advantage of his name and reputation. Despite several appeals, Trump's trademark was refused because of the first to file rule. He did eventually succeeded in invalidating the earlier Chinese trade mark due to his well known status in China. Trump already has 72 trademark registrations in China and in April 2016, 42 new registrations were applied for on his behalf, registered to his Trump Towers address in New York.

There is concern that the President-Elect may be influenced in his dealings with China by China's actions on his trademark applications. The process for obtaining a Chinese trademark is lengthy, often taking around 12-18 months, and so these applications will remain pending after Trump has taken office.

Trump has tried to address the issue by claiming that all of his business interests will be transferred to his children. However, lawyers have argued that he can't simply separate himself from the management of his businesses and he must also separate himself from the ownership of his businesses.

The Emoluments Clause has never been tested in the courts before and it appears that if it is to be tested during Trump's time in office it may well revolve around Trump's intellectual property rights.