Trump: His Trademark Win in China and the Ethical Questions It Raises - Fordham Intellectual Property, Media & Entertainment Law Journal
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Trump: His Trademark Win in China and the Ethical Questions It Raises

Trump: His Trademark Win in China and the Ethical Questions It Raises

Donald Trump’s presidency has presented unprecedented legal questions, ranging from questions about the legality of Trump’s travel ban1 to questions regarding the misuse of government positions.2 However, one question that continues to be asked about the Trump administration is whether Donald Trump will violate the Constitution’s Emoluments Clause due to his vast foreign business holdings.3 The Emoluments Clause states, “No person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”4 Trump’s lawyers believe that Trump isn’t violating the emoluments clause even if foreign governments rent rooms at Trump properties because it would be a fair-market payment for goods and services.5

However, a recent Chinese government decision granted Trump the trademark to his name after a decade of fighting for the rights to his name.6 The timing of the decision is what raises questions in many minds, as Trump was granted the trademark only a few days after a conversation with Chinese President Xi Jinping, where Trump reiterated U.S. support for the “One China” policy despite Trump being the first U.S. leader since 1979 to speak with a President of Taiwan.7 While the granting of a trademark by a foreign government in itself may not necessarily be a violation of the Emoluments Clause, the favorable treatment that Trump appears to have received in receiving his trademark is what is problematic. Richard Painter, chief White House ethics lawyer under President George W. Bush, said that “any special treatment from China would mean that Trump effectively accepted a present from Beijing, an act that would violate the Constitution. A different conclusion might be reached if Trump had been treated like everyone else seeking a trademark, but the evidence does not point in that direction.”8 Unlike the hotel rooms at Trump properties, the decision to grant Trump trademark rights in China presents emoluments clause questions that cannot be easily dismissed by citing fair-market payment for goods and services. Senator Diane Feinstein (D-Calif.) is one of the political leaders voicing concern about Trump’s trademark in China, stating, “If this isn’t a violation of the Emoluments Clause, I don’t know what is.”9

However, this issue is one that is far from being resolved. First, there is no precedent for a case involving the Emoluments Clause, as it has never been the subject of a major court case and the issue has never been taken up by the Supreme Court.10 Second, there is a question of who has standing to sue Trump for allegedly violating the Emoluments Clause.11

Ultimately, the nation will watch as these issues play out in the courts. Donald Trump’s presidency in unprecedented, and we likely will have the answers to the unprecedented legal questions his presidency has raised in the near future.

Johnathan Ling

Johnathan Ling is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. He has a B.A. in Economics from New York University.