Sunday, August 23, 2020

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. 

Saturday, August 22, 2020

When Jehovah's Witnesses Can't Knock on Your Door

 A few months ago I had shared a meme on Facebook about how agonizing Coronavirus has been for Jehovah's Witnesses, knowing that everyone is home but they can't go around knocking on peoples doors.  Well, it looks like they are trying to explore alternatives.  A couple of days ago I found this in my mail box.

What can I say?  I am truly touched.  LOL!

Friday, August 14, 2020

Thoughts on Living in the Age of Coronavirus

It seems like a lifetime ago when COVID-19 was not a part of our lives.  I don't recall the specific date when I first read about it, but it was roughly in late December or early January when it was first mentioned in the news as an epidemic that had broken out in the city of Wuhan in the People's Republic of China.

For most of January, coronavirus was just another story in the news.  Here in the United States, most of us didn't think very much about it except that it was a problem that was "over there" on the other side of the world.  Maybe it would come here, but if it did, would it be serious?

My Facebook feed serves as a sort of timeline for my own thoughts and observations about coronavirus.  My first post mentioning it is dated February 9.  I was channel surfing and paused to watch a figure skating competition in Seoul and couldn't help but notice that everyone sitting in the bleachers of the rink watching the competition was wearing surgical masks.  The next day I posted a link to an article about China harassing Taiwan and expressing my disgust with the PRC for bullying Taiwan when China was dealing with and was the source of the coronavirus epidemic.

Fast forward to March 1st, and suddenly coronavirus had become like a tropical storm that hadn't arrived yet but you knew it was coming.  It was starting to become commonplace to see people in public wearing masks.  As someone who was rather militant about trying to avoid using single use plastics, I was irked that the Starbucks near my office would no longer allow its customers to have the option of having their drinks served in reusable containers that they brought to the store.  On the plus side, I noticed that there were more parking spaces available at my train station from where I would commute into work in Manhattan.  The higher ups in the firm started to circulate e-mails that they were keeping tabs on the situation and were drawing up plans on what would be done in the event that the firm's various offices nationwide would need to close.

It was in early March that the baffling phenomenon of the panic buying and hoarding of toilet paper began to affect the country that to date had seen few deaths from the virus.  My daughter's high school closed, at first for seemingly just one or two days, but the days then turned to weeks and then until further notice.  It never reopened for the remainder of the school year, and all school work was conducted online.  Still, even in early March, many of my coronavirus posts on Facebook were humorous in nature.  It was still common at the time to see some friends post memes on Facebook with the message that we were overreacting to the virus, which had only killed maybe a couple of dozen or so people in the country at the time, compared to the tens of thousands who die annually from the flu.  Those memes certainly did not age well.  My own feelings at the time, from what I recall, was that I didn't take it seriously, but I wasn't sure what to expect.

The real turning point, from my perspective, was Friday, March 13.  I commuted to work in Manhattan as I normally did.  When I arrived at the office, I was surprised to see how many of my coworkers decided to work remotely from home.  I had been provided with a laptop with which to work from home in the event that the office needed to close.  I was still adamant about working in the office as long as I was able to.  The following Monday I showed up again to work and there was virtually nobody there, except one of the mail room staff.  Going through my e-mails, I saw that the office was actually closed.  Since I was there, I decided I would work there for the day, but around 11:30 the office manager, having somehow learned that I was there, called me and told me I had to leave immediately.  I have been working remotely from home ever since.

It was around this same time that New York City and the surrounding metropolitan area began to experience a pronounced and sustained surge in coronavirus cases.  The storm that had been lingering off in the distance had now arrived.  Each day would bring with it the grim tally of the number of new cases and deaths from the previous day.  While I was working from home, my wife had to continue to commute to work in Manhattan to her job as a nurse in a nursing home.  She told me of one nurse who died from the virus a week after having retired from her job there.  

As March progressed, another disturbing phenomenon emerged.  People who insisted on wearing rubber gloves when going shopping were discarding them on the pavement in parking lots.  There were a number of articles about it in the local news and I shared a video I took from one lot by me that was affected by the problem.  Being someone who is rather militant about not littering, it greatly angered me to see so many people behave so irresponsibly by casually discarding gloves on the ground.  At times I would observe other shoppers in the parking lot to see if they would toss their gloves on the ground so that I could confront them, but to my surprise I never personally witnessed anyone doing it.

My son had been taking a welding class at Suffolk Community College that started in late January, which he really enjoyed.  He had quit his job at a nearby retail store because the manager wanted him to work full time hours.  Looking for an alternative, I directed him to apply for a part time job as a package handler at Federal Express.  The hours were kind of crazy, starting at 4 am and ending about 7 am, but it would be a way for him to earn some spending money and work a shift that would not interfere with his welding class, which was on Monday and Wednesday evenings from 5:30 pm to 9:00 pm.  But as with my daughter's high school, Suffolk Community College closed down in mid-March.  It was not long afterwards that my son's job at Federal Express morphed into a full time job.  With stores closed, more and more people were ordering goods online, and the volume of packages that passed through the Federal Express distribution center where my son worked increased enormously.  Concomitant with that, my son and the other employees received a temporary raise to $18.00 per hour.  It struck me as rather odd that the coronavirus epidemic threw so many people out of work, and yet my son, who was less than a year out of high school, had serendipitously found himself in a situation where he was making money hand over fist. 

Sadly, the wearing of masks in public has become the subject of a culture war here in America.  I have to admit that throughout March I still refused to wear a mask when I went into stores.  But as the epidemic grew worse, Governor Cuomo mandated the wearing of masks in indoor public places in April.  I accepted, grudgingly at first, but as time passed I got used to it.  Since late May, the number of new cases in New York has plummeted, and while we had a rough two or three months, we can honestly say that we have flattened the curve here.  As I noted in a recent post, there has been a sharp divergence with other states such as Florida, which initially appeared to have the spread of the virus under control, but have since gone on to experience daily new cases and deaths to rival some of New York's worst days.  

While many of the restrictions imposed by Governor Cuomo have since been lifted due to the decline in new cases and many stores have reopened, the impact on the economy has been devastating and it is hard to see when we will see a return to the way things were before the pandemic turned up on our shores.  My son was saddened to learn that the gym where he worked out at would not be reopening.  A friend of mine who does Thai massage essentially saw her business wiped out.  Without the means to make a living, she was unable to pay the rent for the office space she used to conduct her business.  Even after she resumed business, many of her customers, like me, were people who were no longer commuting to work in Manhattan, and therefore were in no position to make an appointment with her.  So, she found herself in a situation where she was not getting enough customers to afford the rent for the office space she rented, causing her to move. But without the office space, she no longer has the means to carry out her business.  I honestly do not know what she is going to be able to do to support herself, as she is a single immigrant from Thailand with limited job skills and experience outside of her field of Thai massage.

The coronavirus epidemic, in tandem with the protests that flared up in the wake of the death of George Floyd, have torn at the fabric of our nation.  While I am not going to lay the blame for the severity of the epidemic solely at the feet of President Trump, I believe he has failed as a leader in this time of crisis, though of course his ardent supporters still back him 100%.  It is quite apparent though that if Hillary Clinton was currently president of the United States and the coronavirus situation in the country was identical to what we have been experiencing under Trump that the Republican base that maintains that none of this is his fault would be taking exactly the opposite position with Hillary Clinton.

This epidemic, sadly, is far from having run its course, and who can say what the future holds.  The best case scenario is that we collectively as a nation can contain the virus long enough for a vaccine to be developed and deployed.  Until quite recently, the world was becoming closely linked by international travel.  Thanks to the virus, travelling abroad is not possible for the foreseeable future.  My dive group had to cancel its trip to the Cayman Islands this past July, though we hope that we can go in July of 2021.  Countries that were just a few hours away by plane now might as well be on the other side of the moon.  

On the other hand, I am an optimist at my core, and the coronavirus epidemic still pales in severity and lethality to the so-called Spanish Flu pandemic of 1918-1919, which killed more people than World War I.  The Spanish Flu also took place close in time to the Red Scare that followed the rise of the Bolsheviks in Russia and racial tensions in the United States that were far greater than what we are experiencing today.  We eventually bounced back and moved on from these things a hundred years ago.  It should not be impossible that we can overcome the challenges we are facing now.

Thursday, August 13, 2020

An Exercise in Futility?

It is a bit of an understatement to say that the year 2020 has been a depressing year.  The United States of America leads the world in COVID-19 cases and deaths.  My home state of New York, driven primarily by New York City, leads the United States in COVID-19 cases and deaths.  The nation is politically polarized by the protests that have broken out in the wake of the death of George Floyd in Minneapolis.  New York City is becoming depopulated and many storefronts are boarded up.  There's a sense that things are breaking down.  I know it has me feeling depressed.

But rather than succumb to hopelessness and despair, I feel the need to counter these feelings by striving, in ways however small and insignificant, to try and make a positive difference, however infinitesimal.  For example, whenever I am walking from my house to nearby stores, I will pick up litter such as empty bottles and plastic bags lying around and put them in a trash receptacle.  This is one of the easiest things to do because I can just do it.  It does not involve trying to persuade anyone else to take any action.

Now I have decided to try to take action to the next level.  I was inspired to try when I recently discovered two sections of public sidewalk on Old Country Road, one in Hicksville and the other in Plainview, that are in a serious state of neglect.  See for yourself:

This is a representative example of the state of the sidewalk on the north side of Old Country Road in Hicksville across the street from the PSEG facility.  The pavement has been overgrown with grass and other vegetation, and in some places the exposed concrete is barely wider than the width of a bicycle tire.  In fact, the overgrowth is so bad that you can even see it when you zoom in on a Google satellite map of the area.

This section of Old Country Road in Plainview, again, on the north side of the road, is across the street from the Cravings deli.  In addition to the overgrowth, the large trees that stand along the roadside have uplifted entire slabs of sidewalk as seen in the photograph above.

What both of these sections of sidewalk have in common is that no homes or businesses face Old Country Road along their length.  Instead, the sidewalks are lined by the backyard fences of houses that face side streets north of Old Country Road.  According to the Town of Oyster Bay law on the duty to repair, maintain and keep sidewalks clear, "Each owner and occupant of any house...shall keep the sidewalk in front of good and safe repair and maintain it in a clean condition and free from filth, dirt, weeds or other obstructions or encumbrances."  The law says nothing about homeowners being responsible for maintaining sidewalks behind their houses.  It would also be an onerous requirement, as just about any home that has a backyard facing a major road will have a privacy fence that prevents them from seeing the sidewalk, and none of them have gates that enable the residents to step out onto the sidewalk in order to be able to maintain it.

The responsibility for maintaining these public sidewalks must therefore lie with the appropriate local governmental body, which in both cases is the Nassau County Department of Public Works.  

I have long been an adherent of Broken Windows Theory, which posits that if a neighborhood shows signs of physical decay and neglect, then it sends a signal to the population that government is unresponsive and does not care.  So, I decided, let's see if I can get Nassau County government to show that it cares by fulfilling what should be one of the most basic and simple responsibilities we expect of local government, maintaining a public sidewalk.  The uplifted sections of pavement alone I should think is a violation of the Americans with Disabilities Act, as a person in a wheelchair would not be able to use the sidewalk in its present condition.  

What I have done to try to get the County to take action to repair these sidewalks is to write to the Commissioner of the Department of Public Works, the Nassau County Executive Laura Curran, and the two Nassau County legislators whose districts respectively cover the neighborhoods in which these neglected sidewalks are contained.  I sent out the letters this week, along with copies of the photos displayed above.  I estimate that it should take about two weeks to get written responses from at least one if not all of the parties that I have contacted.  I am not naive and I am under no illusion that the responses I receive will be along the lines of "Why you're absolutely right!  We will address this problem immediately!"  At a minimum, I would want the County to concede that it is an issue that needs to be rectified, with vague reassurances that someone is looking into it and will get back to me.  No matter what response I receive, I will continue to press the matter and insist that the necessary repairs and maintenance be carried out.

The name of this blog is Exercise in Futility, which is defined by Merriam-Webster as "an activity that is not successful or worthwhile."  Time will tell if this endeavor on which I have embarked will itself be an exercise in futility.