China gave Donald Trump something this week that he’s been seeking for more than a decade: the rights to own his name in that country. The Chinese government announced Tuesday that it has awarded Trump a 10-year trademark on his last name for construction services, a development that the Associated Press described as a “surprise win” for our businessman-president. Previous attempts to wrest control of his naming rights from a Chinese man who had beat Trump to the punch in registering the name by two weeks repeatedly failed.
Trump’s reversal of fortunes raises a number of important questions, chief among them: Is China attempting to curry favor with Trump because he’s president? Would Trump have received his coveted trademark even if he weren’t president? Would we need to be asking these questions if the president had followed ethics experts’ advice and divested himself of his financial interests in his business empire? In short order: most likely, probably, and certainly not.
First, the backstory: Trump had spent years trying to get this particular trademark with no avail. According to the Washington Post, Trump’s last setback in the matter came in May 2015, when a court denied his then-newest challenge to the existing trademark held by a man named Dong Wei. Nearly one year later, in April 2016, Trump’s lawyers asked Chinese officials to reconsider their decision, which they did, ultimately voiding Dong’s trademark on Sept. 6. The bureau then formally announced Trump’s competing claim to the trademark on Nov. 13, which began a three-month–long bureaucratic process that was completed on Valentine’s Day with the formal awarding of Trump’s trademark for real-estate construction.
It’s important to note that China isn’t giving Trump something that he didn’t already have some claim to, or that he wasn’t likely to get before he became president. Dong only managed to snag the Trump name in the first place thanks to China’s first-come-first-serve trademark policy. In recent years, though, Beijing has taken steps to tighten its trademark laws and intellectual-property rights to bring them closer to those in the West. In December, for instance, the Supreme People’s Court ruled in favor of Michael Jordan in a dispute over a trademark for the Chinese word Qiaodan, which sounds like Jordan in Mandarin. The following month the high court issued guidelines for trademark cases that specifically bar the use of the names of public figures in areas including politics, economy, culture, and religion. It’s reasonable to believe, then, that Trump would have been granted this particular trademark even if he had never been elected president. But, of course, Trump was elected president.
If you overlay the timeline of Trump’s quest for the trademark with that of his political career, all those dots start to look like a straight line. Trump’s complaints fell on deaf ears for years before he launched his presidential campaign; China agreed to revisit the matter after he jumped in the race; trademark officials sided with him for the first time shortly before he was elected and then again days after he won the presidency; and finally, China officially awarded Trump’s trademark less than a month after he took the oath of office. None that proves causation, of course, but it creates the appearance of possible favor trading, something that could have been avoided altogether if Trump had left his business behind when he headed to Washington.
The trademark case also raises the related issue of the U.S. Constitution’s Emoluments Clause, which bars Trump from accepting “any present, Emolument, Office, or Title, of any kind whatever” from a foreign state. The aim of that language wasn’t to prevent bribery—which is, after all, explicitly barred elsewhere in the Constitution—but instead to prevent public officials from being influenced in more subtle ways. As conservative legal scholar David Post has put it, “accepting an emolument introduces an improper element—personal gain—into the decision-maker’s calculus, less obviously and overtly than in cases of actual bribery, but no less serious for that.”
It’s easy to spot areas where Trump’s worldview could have been shaped by his business in China. ThinkProgress editor Judd Legum pointed out Wednesday night, for example, that Trump went from questioning the United States’ “One China” policy to affirming it in the days before his trademark was finalized. To my eye, Legum may be oversimplifying the timeline a bit. Trump’s original comments on the matter came after he was already well on his way to getting his trademark, though it is conceivable China was willing to use the trademark as leverage by threatening to derail the process at the last second if Trump didn’t reverse himself. Regardless, Legum’s larger point about the appearance of conflict is a crucial one. As long as Trump is both businessman and president, his own financial interests will unavoidably hang over his presidential decisions.
This trademark decision isn’t a one-off event either. Donald Trump has 49 other trademark applications still pending in China, along with scores of current ones that will come up for renewal during the next four years. Regardless of whether Trump deserves those trademarks, China is now in a position to use each of them as bargaining chips in matters of state. The president, then, is negotiating with a foreign power that has the ability to directly help or harm his own personal financial fortunes. Both Trump and China know that—and they also know that Trump is already on record that he believes his naming rights rise to the level of geopolitical importance. Back in 2011, Trump wrote then–Commerce Secretary Gary Locke asking him to intervene on his behalf in his quest for an exclusive trademark in China. “My appeals lawyer said that while we should win the case 100%,” Trump wrote, “we won’t because the cards are stacked against Trump.” Now that he’s president, it’s clear they no longer are.