On the heels of an influx of unauthorized trademark applications and uses of First Lady Melania Trump’s name, First Daughter Ivanka Trump’s name is proving a hot commodity in China. Since the U.S. Presidential election in November, at least 65 applications have been filed with the China Trademark Office to register “Ivanka” as a trademark in an array of classes of goods and services, including supplements, alcohol, tissues and wallpaper.
Simultaneously, the Global Times has reported that at least 40 companies in China have used the Chinese characters for Trump's name (伊万卡) in their company registrations, primarily for goods including cosmetics and underwear.
Such tactics are common in China, where trademark squatting has proven a widespread issue for non-native rights holders. Used interchangeably with the terms “trademark hijacking” or “bad-faith filing,” squatting refers to the “intentional filing a trademark application for a second party's registered trademark in a country where the second party does not currently hold a trademark registration.”
Given that way the Chinese trademark system works, this is an unsurprising development. China observes a first-to-file system in connection with trademark registrations. As such, the first party to file an application for a trademark is given priority. This contrasts with the U.S. system. In the U.S., it is not registration, but actual use of trademark that creates rights and priority over others. Thus, the system favors entities that are the first to use a mark in commerce.
Moreover, as you may know, for many years, a large variety of brands – from Apple and Goldman Sachs to Dior and Hermes – have struggled in their expansion efforts in the Far East as a result of trademark complications that come with a first-to-file system. As a result, China has been decidedly regarded as a nation where intellectual property infringement is exceptionally widespread.
While Trump has trademark rights in China - she holding company, Ivanka Trump Marks LCC filed applications for "Ivanka" in an array of classes beginning in 2010 - she likely lacks rights in all of the classes that third parties are currently seeking to exploit. Nonetheless, she has recourse due to the fact that much like trademark law in the U.S., China's Trademark Office will refuse to register marks that are confusingly similar to existing marks.
Trump has additional remedies thanks to the relatively recent Chinese trademark reform. Beginning in May 2015, the Chinese government enacted revisions to its national trademark law. The major changes include: an increase in the level of damages the court may provide for trademark holders whose marks have been infringed (the limited is now $480,000 per infringement, six times more than the prior maximum), procedures to reduce bad faith filing, a quicker turnaround time for trademark applications (the China Trademark Office will complete its examination of an application within nine months), stricter standards against the unauthorized use of "well known" marks.
Thanks to the newly enacted revisions, brands now have increased access to the Chinese Trademark Review and Adjudication Board, which has the power to invalidate registered trademarks. Such revisions, especially the ones that address bad faith applications, serve as significant lifelines for Ivanka Trump and other non-native entities that have been subject to extensive trademark infringement schemes.
And it is exactly these provisions that many brands are successfully citing in their motions to fight the Chinese holders of their trademarks. Hence, the rise in intellectual property-related actions filed by non-native entities, such as Facebook, Apple, Goldman Sachs, BMW, Christian Dior, Hermès, Costume National, Iceberg, Michael Bastian, Moncler, Max Mara, and Ermenegildo Zegna, among others.