Trump, Brexit and Korean reunification: the political issues weighing on the minds of trademark practitioners

• Exclusive survey identifies the political issues impacting trademark strategies
• Most raised was Brexit, followed by issues related to US administration policies
• Results confirm counsel must proactively prepare for unpredictable political events

New research from World Trademark Review has revealed the key political issues that trademark counsel  say could significantly impact enforcement efforts, both now and in the future. Leading the way are the policies of US President Donald Trump, the possible implications of the UK’s exit from the European Union, and the possible reunification of the two Koreas.

As part of our annual Global Trademark Benchmarking Survey – coverage of which we began publishing last week – we asked hundreds of practitioners (both in-house and in private practice) from around the world about the non-trademark-specific political developments they anticipate will have an impact on brand protection efforts. The results were wide and varied, evidencing the politically turbulent nature of the world we are living in.

The issue that was mentioned the most was Brexit. One in-house practitioner confirmed that the move has already “increased costs as we have begun applying for UK national marks” due to the uncertainty over the future protection offered by EU trademarks in the UK. Numerous private practitioners confirmed that, with negotiations between the EU and the UK being relatively slow when it comes to IP matters, they have already begun advising clients to adjust their brand strategies. As noted, this isn’t a surprise – on World Trademark Review we’ve published nearly 100 articles in the past 18 months about developments related to Brexit and the preparation strategies that practitioners should be aware of.

Another topic we’ve written extensively about in the past 12 months, and that was raised by numerous respondents, was the IP implications of the new Trump administration. One of the key topics in that regards was increased nationalism and how that could impact trademark strategies. “US isolationism may make enforcement in other countries, particularly China, more difficult,” says one in-house attorney, with another stating: “A shift in public policy in the US towards closed markets, with less exports of products and services, might diminish trademark value and recognition worldwide.”

Our survey was conducted before US-China relations worsened, meaning that these fears are likely even more acute now. Just yesterday Rick Helfenbein, president and CEO of The American Apparel & Footwear Association, hit out at President Trump’s announcement that he is directing the US Trade Representative to consider an additional $100 billion in tariffs on US imports from China: “It is time to wake up – we are being marched into a trade war and the losers will be American workers, American consumers, and the American economy. The decision to consider an additional $100 billion is far from ‘appropriate.’ Tariffs are hidden, regressive taxes paid for by hardworking American families and result in lost American jobs, higher prices, and damage to the American economy, plain and simple. Additional tariffs only add fuel to the fire and create an environment of one-upmanship that will not solve the problem we are trying to fix. We cannot treat this like a school yard fight. This is a fight where everyone loses.”

An issue that has been less discussed, in terms of the trademark implications, is the possibility of closer relations between South and North Korea. Of course, significant changes in the region are far from certain – with major meetings due next month – but there are signs that suggest North Korean leader Kim Jong-un may be open to a more cooperative relationship with the global community. One private practitioner, though, went further – suggesting the two Koreas could reunify and telling us they have already been considering the possible IP impact of such a development: “The reunification of the two Koreas is a potential scenario that lawyers practicing in Korea should anticipate. In the event of reunification, the issue of registration, recognition, and enforcement of North Korean trademarks would become an important issue. For instance, North Korea does not allow for registration of any trademarks if there is any connection, real or perceived, to South Korean individuals or companies. Meanwhile, there are several famous South Korean trademarks that have been registered in North Korea in which the owner on record is a different entity than the one registered in Korea. Upon reunification, it is anticipated that there would be an explosion of rules, regulations, and case precedents that seek to resolve the overlapping scope of trademark rights, invalidation trademarks, and enforcement of trademark rights within the unified Korean Peninsula.”

There were, of course, other political issues that were raised by respondents. Some of the most significant came from Africa. For example, one private practitioner observed that the change of government in Zimbabwe “may result in investment in Zimbabwe and an economic upturn – it will therefore be imperative that IP is protected”. Across the border in South Africa, another law firm counsel said ongoing political developments are having a tangible effect on the trademark ecosystem: “South Africa is run by a corrupt government that is tampering with fiscal policy There could be low growth for a long time ahead; for that reason, local firms are struggling as younger talent have taken flight or changed profession, whilst at the same time are expensive, which means clients may turn to global firms with a presence in South Africa.”

Overall, the feedback we received made clear that practitioners are facing up to a very different planet than was the case even a couple of years ago. As one put it, “the world is changing (eg, Brexit, Trump's policies, Russia, China, new markets) and clients are adapting their strategies to the new geopolitical situation”. Political events in the recent past have been more unpredictable than at any time in half-a-century – and the most tenacious, proactive trademark counsel must ready themselves for whatever happens next.