Ivanka Trump and protecting personal brands in China
lvanka Trump's attempts to protect her personal brand with trade marks in China have been thwarted by squatters. In a guest post in MIP, Charlotte Trinh and Mandy Liu examine the lessons that can be learned from her experiences.
There have been numerous column inches spent dissecting the recent provisional approval of 35 Trump-related trade marks filed in the name of Donald J Trump. While President Trump has managed to largely sidestep the persistent issue of bad-faith applications, the efforts of his daughter, Ivanka, to trade mark her personal brand in China have been largely thwarted by the diligent creativity of squatters.
It is a well-trodden path for celebrities to find trade mark applications for their names (including common Chinese transliterations and variants) filed in a wide range of classes by enterprising third parties. Some applications are made by Chinese businesses who offer merchandise which trades off the popularity of the celebrity, others by trade mark squatters who hope to make a quick profit from selling the marks back to the celebrity.
Recent revisions to the Trade Mark Law and practice have attempted to address the perennial scourge of bad-faith filings. The Qiaodan (aka Michael Jordan) case has shown that ultimately a legitimate brand owner can have some success by pursuing their rights through the legal system. Nevertheless, reclaiming a brand remains a long and costly affair. In the meantime, the bad-faith applicant continues to build a business and profit from the brand owner's reputation. This remains a lucrative and feasible business model.
Like her father, Ivanka Trump has long understood the potential upside from leveraging her personal brand. Her earliest filings in China date back to 2008 and include both Latin and Chinese character versions of her name covering goods and services of core commercial interest, such as jewellery. She now has around 55 applications. But even the Trump business savvy could not avoid the roadblocks which have arisen as obstacles to several of these applications. Ivanka, its common Chinese transliteration Yiwanka, and variants comprising these elements have been filed in almost all classes by various parties. Some creative filings by squatters include: Yiwanka Yivank; Yiwanka Iwanka; Ivankatrunvp; Yiwanka Evanka; Lvanka; Ivankar; Yiwanka Nvanka; Yiwanka Msivanka; Ivankana; Ivankabeauty; Hjivankayh.
The art of the deal
What's a modern business woman to do? Firstly, it's clear that there is a continued need for brand owners to protect their key brands (including Chinese versions) for core goods and services as early as possible. Secondly, it is also worthwhile filing defensive trade mark applications at least for classes related to the core business. This is where it gets tricky: balancing big picture plans for where a venture may be headed against the costs of keeping a business up and running in the here and now. Every business has budgetary constraints, but pre-empting squatters will always be cheaper and faster than trying to reclaim a brand registered by third parties.
Although Ivanka made crucial early steps in the right direction, even she did not foresee her full branding potential in China. Gaps in her portfolio included cosmetics, glasses and bags. From 2012 onwards, these gaps were exploited by third-party filings, and today remain key battlefields in Ivanka's fight to reclaim her brand in China. These bad-faith marks have blocked Ivanka's own applications from registration.
See you in court
Ivanka could oppose or invalidate those bad-faith marks which arguably damage her commercial interests because they are "deceptive" or "adverse to public interests". The Supreme People's Court recently issued an interpretation confirming that the "deceptive" ground could be relied on by celebrities, whereas the "adverse to public interests" ground could be claimed by political figures. Although Ivanka may not be as famous as her father or Michael Jordan, given her recent move into the West Wing it is certainty worth a try.
For the bad-faith applications completely unrelated to Ivanka's core business, and where actual use by the applicant seems unlikely, a more passive (but still effective) strategy would be to allow them to register and then cancel them for non-use three years after their registration.
Make lvanka great again
A more diplomatic path Ivanka could take would be to utilise her considerable social media following, and the platform it provides, to draw aspirational consumers to her side and dissuade them from purchasing the unauthorised products. She could easily extend her already successful media strategy further into China. A glamorous modern businesswoman, mother to three adorable children (one of which speaks Chinese!), with fashion and business interests in China, and some engagement in social or cultural events, would be a compelling brand proposition.
The comprehensiveness of any trade mark filing strategy is always tempered by an assessment of genuine commercial risks and budgetary limitations. Given many bad-faith filings are merely speculative, with applicants not having any real intention to put marks to use, the most sensible response from brand owners (particularly SMEs) is sometimes to simply tolerate bad-faith marks. For celebrities possessing the right platform and media savvy, there can also potentially be more powerful avenues for reclaiming some control over their brand.
This article was first published by Managing Intellectual Property Magazine.