There Is Nothing Wrong With Ivanka Trump's Trademarks in China

While I am no fan of Donald Trump or his family, I cannot abide criticisms and accusations of them that are not based in fact.  It adds credence to the narrative that Trump and his supporters have that it is all "fake news."

One accusation that I see pop up often that particularly annoys me is when I see people refer to Ivanka Trump's trademarks (sometimes mistakenly referred to as patents) in China as if there is something shady going on.  Specifically, suspicions are raised about Ivanka Trump having a trademark registration for voting machines in China.  I am guessing these people conjure up visions of Ivanka Trump having voting machines manufactured in China that will then be brought into the United States as part of some nefarious plot to rig the election for her father.  

This is all nonsense, and the reason I know this is because by profession I am a trademark paralegal with over twenty years of experience and who has overseen the registration and maintenance of trademarks in China. While I have not handled Ivanka Trump's trademarks (and legal ethics would bar me from publicly commenting on them even if I did), I have a pretty good idea why her company would have one or more registrations in China that cover voting machines.

But first, a quick primer on trademark laws.  There is an international classification system that classifies goods and services into classes, depending on the kind of good or service being provided.  This is called the Nice Classification.  Both the United States of America and the People's Republic of China are contracting parties of this classification system.  Now on to what the U.S. and China don't have in common.

In the United States, in order to obtain a trademark registration, an applicant must use the mark in the United States for the goods and/or services covered by the application.  There are two exceptions to this, (1) if the application claims registration of the mark in a foreign country, or (2) if the United States is designated in an International Registration via the Madrid Protocol.  However, even if a foreign applicant obtains a trademark registration in the United States via these two exceptions, the applicant will still need to file a Declaration of Use by the 6th anniversary of the United States registration, or else the registration will be cancelled.  In China, on the other hand, there is no requirement to prove that the mark sought to be registered is in use for any of the goods or services covered by an application.  If you were so inclined, you could coin some unique word for some item of goods or services for which it will never be used, apply to register it in China, and if the Chinese Trademark Office has no grounds for rejecting it, you will be the proud owner of a trademark registration in China.

Back to the classification of applications.  In the United States, applicants have the option to describe the goods or services in an application the way they want, as long as it fits within the parameters of what is wording accepted by the United States Patent and Trademark Office.  China is different.  For each class of goods and services, the Chinese Trademark Office has a list of subclasses with specific wording for everything covered by each class.  So, if you wanted to file a trademark application in China, you would have to select the subclass or subclasses that best approximate the goods or services for which registration is sought.

Now on to the last difference that has a bearing on the matter of Ivanka Trump.  In the United States, you cannot register a mark that consists of the name of a living individual without providing the consent of that person, whereas in China no such consent is required.  If you were to look on the USPTO's TESS database and search IVANKA TRUMP, every one of them filed by her company will note in the record "IVANKA TRUMP" identifies a living individual whose consent is of record.  

It is these differences between the United States and China that has made China a breeding ground for trademark pirates and squatters who will apply to register marks in China identical or similar to famous brand names or the names of famous people, as they are unfettered by the need to prove they are using the mark in commerce in China or to provide the consent of the actual living person whose name is being trademarked.  Because China is what is known as a "First to file" system, a lot of these pirates will try to register marks of people or companies outside of China before their legitimate owners do so that when they get around to trying to file their own marks in China they find themselves blocked by the trademark pirate.  The pirates will then offer to sell their marks to the legitimate owner for money.

 So now we get to Ivanka Trump.  While the records of trademarks in China are not publicly accessible (unlike in the United States where there is a public database called TSDR which lets you look at all of the documents filed in a trademark application), I can be fairly confident about why Ivanka Trump has registrations that cover voting machines.  Like I wrote above, you can register a mark in China for any good or service, even if it is not in use.  Voting machines are a subclass item in International Class 9.  If Ivanka Trump were to obtain a registration in China only for the limited Class 9 products her company offers, a trademark pirate could still apply to register IVANKA TRUMP for voting machines in Class 9.  Therefore, what she and owners of other famous marks often do in China is that they apply to register their marks for every subclass in the goods or services classes of interest because they do not have to prove use of the mark for these goods and services.  In countries such as China, these are what are called defensive registrations, where the owner of the famous mark will obtain a registration simply in order to prevent someone else from doing so.

As you can see then, just because Ivanka Trump has one or more registrations in China covering "voting machines" does not mean that it is part of some villainous plot.