Donald Trump may have moved from the TV boardroom to the Oval Office, but he still has a branding angle.
China recently gave President Trump preliminary approval for a range of trademarks, clearing the way for the ultimate chief executive to put his name on everything from retail shops to vending machines in the country.
The applications were filed in April and it will be another 90 days before the marks are officially registered in the country, according to documents released recently by China’s Trademark Office.
Trump, who has vowed to crack down on what he calls unfair trade practices by China, filed several additional trademark applications in June that are still awaiting approval from the country. They would cover a full range of apparel, from men’s suiting and wedding dresses to halter tops and ponchos, bearing the president’s name.
When asked why Trump applied for the trademarks and whether they posed any conflict of interest, a White House spokeswoman directed questions to the Trump Organization.
A spokeswoman for the President’s real estate and branding empire said: “The Trump Organization has been actively enforcing its intellectual property rights in China for more than a decade and its core real estate related trademarks have been registered in China since 2011 — many years before President Trump even announced his candidacy for office. The latest registrations are a natural result of those long-standing, diligent efforts and any suggestion to the contrary demonstrates a complete disregard of the facts as well as a lack of understanding of international trademark law.”
However, President Trump applied for and holds all of the trademarks in China as an individual, not through the Trump Organization, which maintains his various business interests and is now overseen by his sons, Donald Jr. and Eric.
The Trump Organization declined to further address why Trump holds the marks as an individual, and did not answer whether Trump currently has a branded apparel business in China, or if the recently approved and pending trademark applications are part of any future business plans in the country.
The fact that the president holds the marks as an individual could renew the conflict of interest worries that dogged Trump after his surprise win in November.
Tony Lupo, a partner with Arent Fox LLP focused on retail and intellectual property law, said any company like the Trump Organization should “absolutely protect its interests” in China and elsewhere, but noted this is a matter of a sitting president supporting his brand, not a company.
“It could be for tax or bankruptcy purposes or some other financial reason, but the interesting wrinkle here is we have a sitting president who individually owns trademarks in the U.S. and now the world,” Lupo said.
Lupo noted that in order to get a trademark, the holder generally needs to show the mark is being actively used, be it for licensing or selling goods. In the case of brands named for individuals, he said the individuals themselves are not usually the owners of the trademark, which are instead held by an entity created for the purpose.
Lupo pointed to J.W. Marriott and Michael Jordan as well-known examples of this. The president’s daughter, Ivanka Trump, also has trademarks for her fashion line registered in the U.S. and China, according to registration documents, but under the entity Ivanka Trump Marks LLC.
First Lady Melania Trump also came under scrutiny for claims made in a recent lawsuit against The Daily Mail of Britain, in which she accused the publication of hurting her newfound branding opportunities as “one of the most photographed women in the world” by publishing a story that she claimed was libelous. Melania later removed that language from her complaint.
Branding seems to be something of a family tradition for the Trumps, but Norman Eisen, a Governance Studies fellow with the Brookings institute who previously worked as an “ethics czar” in the Obama administration, said a president securing new trademarks raises concerns of constitutional violations, especially given the “unprecedented scope and scale” of those recently granted by China for Trump.
“No president in U.S. history has ever done anything remotely like this,” Eisen said. “When Trump is profiting from these valuable Chinese benefits flowing into him, how can we be sure he will advance U.S. interests in his engagements with that country, for example by staunching the flow of American jobs out from the U.S. to China?”
Eisen is part of legal team pursuing litigation in New York federal court claiming the Trump Administration is violating the emoluments clause of the U.S. Constitution by permitting Trump businesses, like hotels, to accept payments from foreign governments. He added that the trademark issue will likely be added to the litigation.
A representative of the Office of Government Ethics could not be reached for comment.
Sheri Dillon, a partner with Morgan Lewis & Bockius LLP who worked on moving the Trump Organization under the control of Trump’s sons and the company’s longtime chief financial officer, could not be reached for comment.
During a January press conference announcing the Trump Organization executive changes, Dillon addressed conflict of interest concerns around the president and his business ventures saying, “Conflict of interest laws simply do not apply to the president.”