Beyond Biglaw: Ivanka's Trumptastic Trademarks
What lessons can we learn from Ivanka Trump's trademark strategy?
Ivanka Trump (by Michael Vadon via Wikimedia)
Now that I teach high schoolers about intellectual property law, I am always on the lookout for relevant current events that can help support my classroom objectives. I was happy, therefore, to read about the current news focus — some would say controversy — regarding Ivanka Trump’s international trademark activity, and how her efforts in that regard could be impacted by her apparent role in advising her father on U.S. foreign policy. Since I am in the middle of a unit with my students on trademark law, and am always looking to demonstrate how important IP issues can be in the global economy, the recent media attention on Ivanka has been both timely and an interesting case study for my students to consider.
As an initial matter, the entire Trump presidency has been of unique interest to IP lawyers, particularly those with a practice that includes trademark or branding matters. While other presidents have had name recognition and even fame (e.g., Reagan as an actor, Obama as a writer) prior to entering the Oval Office, perhaps only Teddy Roosevelt has rivaled Donald Trump’s pre-election fame as a “brand.” And while Ol’ Rough & Ready may have thrilled the turn-of-the-20th-century citizenry with his wartime and hunting exploits, I seriously doubt he could match Trump’s proven powers of generating revenue by licensing his name. In fact, a recent article in Forbes suggests that the typical Trump licensing deal sees Trump receive 5% of the gross revenues generated by a Trump-branded hotel, for example. Considering the illiquidity of most of Trump’s real-estate holdings, it would not be a stretch to say that his licensing deals are a critical source of cash flow for his business.
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Having absorbed her father’s lessons about the value of branding and licensing, it is not surprising that Ivanka has pursued an aggressive trademark procurement strategy with respect to her own businesses. While her father’s main licensing focus has been on real estate, golf courses, “universities,” and other one-off opportunities (though he has dabbled in consumer products like steaks, wine, and flashy ties), Ivanka’s branding efforts have been focused on supporting her apparel business. But according to an article in Bloomberg Pursuits, that may be changing in a couple of respects, as she focuses now on expanding her rights to more than just her full name (even though she is the first to admit that when she started her business, it was critical for her to jump-start her brand with the name-recognition engendered by her last name).
While bearing the last name Trump was undoubtedly invaluable to Ivanka in a variety of ways when she started her business, there is no doubt that her newfound popularity and higher public profile have caused her to become even more proactive in protecting her personal brand. On the one hand, she has attempted to expand her rights by seeking to trademark her first name Ivanka — without the reference to Trump that is included in her current trademarks. Considering the distinctive nature of her name, and lack of competing famous Ivankas, she has a puncher’s chance of convincing the USPTO to give her those rights. This type of attempt to expand the scope of a brand is pretty common amongst celebrities and corporations, and represents the equivalent of Obama trying to register a trademark in his distinctive first name, Barack.
Interestingly, it seems like Ivanka’s defensive trademark activity has come under more media scrutiny than her efforts to trademark Ivanka as a freestanding mark. In particular, there has been a lot of attention on her attempts to register a variety of trademarks in China, where she is apparently revered as some sort of goddess. Many of these filings seem necessary, however, considering how many third-party attempts to profit off her name by securing trademarks have occurred since the election. A veritable barrage of trademark filings using the Chinese character for Ivanka have apparently been filed in China, and Ivanka’s own filings are clearly designed to ensure that she exerts as much control as possible over the use of her name in that country. While stopping counterfeit products in that market has proven near-impossible for many famous brand owners, owning Chinese trademarks is an important first step in enforcement that brand owners must pursue. Some have tried to point to China’s issuance of trademarks to Ivanka as a sign of the country trying to curry favor with her father’s administration, but I would venture that there are much more concrete ways for China to do so if it so desired. In short, Ivanka is doing what she needs to do on the trademark front, no doubt ably assisted by her trademark counsel.
One interesting feature of trademarks with respect to legal practice, particularly when it comes to portfolio management, is that small law firms are frequently able to compete with their Biglaw brethren for the work. Unlike trademark litigation, which can lead to higher billings, trademark portfolio management is often a cost-sensitive endeavor for clients. Accordingly, the Biglaw firms that do this kind of work often focus on very large portfolios, or those likely to contain marks that are involved in litigation often. Smaller boutique firms can typically handle the work at the same level, however, which increases the price competition in the area. Additionally, because of the need to work with foreign law firms to register and manage portfolios in foreign jurisdictions, trademark clients sometimes value a dedicated team to help piece together and manage a global portfolio.
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Ultimately, what Ivanka’s example teaches us is that no matter how famous you are, your trademark strategy must have offensive and defensive components. Otherwise, you risk seeing your valuable brand name on subpar products — maybe even products unworthy of bearing the gilded glitz of the Trump name.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
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