For most of last year, Trump’s application to Register Trademarks for his brand of Home Accessories languished in a Government office in Lima, Peru. But since Trump was Elected in November, the pace has picked up.
A six-month-old request to Register his Brand of sheets, duvets, towels and other goods, now selling briskly at a Home Goods store in Lima, overcame a crucial hurdle in late December. So did a second application to protect Trump’s Brand of flatware that was filed after the election.
Peruvian officials say they are treating Trump’s Trademark applications like anyone else’s and are acting on them now simply because his Business Representatives have answered outstanding questions. They insist that Peru’s President, who met Trump in the Oval Office in late February, has no influence over their decisions.
But to a team of Constitutional Lawyers and Ethics Lawyers, the pending Peruvian petitions are emblematic of the Legal and moral perils in Trump’s continued Ownership of his Business Empire. In a Federal Lawsuit that has set up a high-stakes Legal battle with the Trump Administration, they argue that the Constitution prohibits the President from accepting any Economic Benefit, including Trademark Approvals, from Foreign Governments.
A review of 10 Trademark databases shows that Trump’s Enterprise, now run by his two adult sons, has 157 Trademark Applications pending in 36 Countries. Registered Trademarks are valuable Financial Assets, especially for a business like Trump’s, which is increasingly focused on Marketing his name, not building hotels.
When the Chinese granted Trump preliminary approval of 38 Trademarks of his name, not long after he was sworn into office, “it was a gift,” said Peter J. Riebling, a Trademark Lawyer in Washington. “Getting the exclusive right to use that brand in China against everyone else in the world? It’s like waving a magic wand.”
How much of a gift is hard to estimate. A top Trump Organization official recently estimated that the firm generated $400 million a year in revenue, a third of it overseas, from the sale of Trump-branded products and services. While some of that revenue presumably goes to companies that have slapped the Trump name on their own hotels or tea bags, Trump’s financial disclosure forms indicate that those firms pay him millions every year, perhaps tens of millions, for that right.
The Legal question is whether new Foreign Trademark Registrations and other Transactions between Trump’s Businesses and Foreign Governments Violate the Emoluments clauses of the Constitution. One Clause prohibits Federal officials from accepting “any present, emolument, office or title of any kind whatever from any king, prince or foreign state.” The other Clause addresses the same from States in Interstate Commerce. The Foreign Emoluments can be forgiven on an individual basis by Congress. The States can not.
The debate now also engulfs Trump’s daughter Ivanka, who late last month became an Unpaid Assistant to the President. She, too, is covered by the emoluments clauses, according to previous Legal opinions issued by the Justice Department. Her company has 37 Trademark applications pending in 10 Countries, covering the sale of leather goods in China, jewelry in the Philippines, and Beauty products in Indonesia.
“If you could bring the founders back, to a person they would say, no, you can’t accept that,” said Norman L. Eisen, a Co-Founder of Citizens for Responsibility and Ethics in Washington, a liberal Nonprofit group that filed a Lawsuit in United States District Court against the President over Emoluments. “How can we be confident that he is making decisions in the interest of the United States when he has these enormous potential inducements?”
But in a Brief expected to be filed this month, Justice Department Lawyers will counter that the Framers of the Constitution meant only to rule out Gifts and Compensation for Services, not ordinary, arm’s-length Commercial transactions with Foreign Governments. Otherwise, they argue, the Framers would have had to confront the potential effect of the Ban on the Nation’s earliest Presidents, including George Washington, who supplemented his meager Presidential Salary partly by exporting Flour and Cornmeal to England and elsewhere.
Attorney General Jeff Sessions and his Top Aides have personally briefed Trump on the Lawsuit, which the President has publicly dismissed as being without Merit.
Since becoming President, Trump has shifted control of his Companies to a trust managed by his eldest sons and a Company Officer. But one of the sons, Eric Trump, an Adviser to the Trust, has said he will keep his Father abreast of the state of his Business Empire. Trump will also be able to tap into company Profits at will, as he still the Major Owner of the Empire.
Seeking to blunt the Emoluments controversy, Trump has pledged to Donate Profits from Foreign Government guests at Trump Hotels or similar Businesses to the Federal Treasury. But is he earning income on the Money? He also said he was not going to take a salary but found out he has to. So he give his 1st quarter salary to the Parks Department.
His Sons say they have also backed away from billions of dollars’ worth of new Foreign deals.
But they are still developing and expanding Projects that were already underway, including a new 18-hole golf course at a Scottish Resort. And as it has for 20 years, Alan Garten, Chief Legal officer for the Trump Organization, said in an email, the Company is still “zealously enforcing and protecting its intellectual property rights around the world” especially in countries where “infringement is rampant.”
Ivanka Trump has applications pending in nine of the same Countries where her Father’s Petitions await a decision, plus China, the databases, and other Records show. She has rolled her Fashion Brand into a Trust that is overseen by her brother-in-law, Josh Kushner, and sister-in-law, Nicole Meyer. Her lawyer, Jamie S. Gorelick, a prominent Democrat who served in President Bill Clinton’s Administration, is to review all new deals and flag any potential conflicts of interest to Ms. Trump. But like her farther, she still owns these company.
No Worldwide Trademark Registry exists, and Countries update their Data differently, so the number of Open applications is an estimate. Trump’s pending Petitions cover the gamut of Goods and Services, from Chandeliers in Saudi Arabia to Spa services in Canada.
One would safeguard the Trump name in the Philippines, where Jose E. B. Antonio, a Real Estate Magnate who was named last fall to be a Special Envoy to the United States, has Licensed the use of the Trump name on a $150 million Apartment Tower.
Another is pending in Indonesia, where his Firm is involved in building two luxury Island Resorts. After Trump was Elected, his billionaire partner, Hary Tanoesoedibjo, who attended the inauguration, publicly boasted that he had access to the President, but later said he had meant Trump’s children.
A Federal Appeals Court has ruled that Trademark Registrations in the United States bestow Significant, Financially valuable benefits. Unlike the United States, some foreign Countries allow applicants to Register Trademarks defensively to stake out future ground. Even then, specialists say, approval is an Economic Asset.
“It means the ability to use it, either offensively or defensively, to get profits in the future,” said Rebeccah Gan, a Trademark Lawyer in Washington with a number of Foreign clients.
In a 2015 Deposition discovered by the Nonprofit Project on Government Oversight, Mr. Garten, the Trump Organization Lawyer, said Trump personally owned his Trademarks. He estimated that Overseas Sales made up as much as $140 million of $400 million in Annual Revenue generated by the sale of Trump-branded Products and Services. Last May, Trump reported to the Office of Government Ethics that in the previous 17 months he earned between $14 million and $65 million in Royalties and Licensing fees, up to two-thirds of it from Overseas.
His companies have recently been making a concerted push in Central and South America, filing dozens of Trademark Applications. One filed a petition covering a variety of home accessories in Peru in June, but Peru’s Trademark Office issued an Order to Publish the Request, a crucial step, only in late December. A second Request covering Trump Cutlery, filed Dec. 16th, cleared that hurdle in mere days. A Peruvian Trademark official said the first application took longer because it was broader and the firm failed to promptly respond to questions.
Both now await decisions, but Trump Sheets, Pillows, and Dishware are already for sale at Casa Viva, a Home Goods store in Lima. Gonzalo Mejia Peterson, the Store Manager, said some customers reacted warily to the Trump name, but the Sales Staff has been trained to explain the difference between Politics and Business. “There’s no reason to mix them up,” he said.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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