Johnson & Johnson Sues Red Cross Over Symbol – New York Times
By STEPHANIE SAUL
Published: August 9, 2007The red cross symbol is an icon of relief from disaster. For months, it has also been the subject of a festering disagreement between major American institutions: the health care company Johnson & Johnson and the American Red Cross.
I wonder if J&J would object to my using the Red Cross in my logo?
Hmmm… looks like its going to be a showdown between federal law and patent law…..
You must be grinning ear to ear. I would be.
I don’t think it’s that the Red Cross uses the logo – it’s that the Red Cross is selling merchandise with that logo on it at Wal-Mart, Walgreens and other retailers that’s the problem. I have to agree with J+J; the Red Cross is a non-profit and should not be making money from the use of that logo especially since in 1895 Clara Barton (founder of the Red Cross and Ex-Spanish American War Nurse) signed an agreement with J+J promising NOT to use the logo for profit making.
It’s usually the Red Cross suing for trademark infringement….
Glad to see those bottom-feeders getting some of their own treatment.
I am surprised that the company which has taken it upon themselves to recruit new nurses is engaged in this. The Times article said they have shared the logo for years and that the monies ARC is making are for disaster relief funds…what up with that J&J??
So if they dont own it, how can they require you to “cease and desist?”
Just because you’re a nonprofit doesn’t mean you can change the rules, especially rules you agreed to 100 years ago.
Probably what happening is that some company is using them to horn in on J&J’s business, and they were stupid enough to fall for it.
Looks like typical Red (as in socialist) Cro$$ NGO activity to me.
“What did we do wrong? We were just trying to make some money for the children, poor, homeless, victims, insert-your-meme-here! The big bad capitalist corporation is bullying us!!! ” I have dealt with some of them recently and based on that experience am a wholesale supporter of Salvation Army.
I think that I just might go buy some J&J bandaids today.
William sends.
THE FACTS AND LEGAL ISSUES IN JOHNSON & JOHNSON SUIT AGAINST THE AMERICAN RED CROSS
Red Cross Established First Use of Emblem:
The Red Cross began using the red cross emblem in 1881, six years before Johnson & Johnson (J&J) began using the emblem in 1887.
J&J obtained a trademark registration in 1887, but did not object to the Red Cross use of the emblem at that time.
The Red Cross was first chartered by Congress in 1900, and that charter was amended in 1905. The 1905 amendment gave the Red Cross the use of the emblem, and specifically stated that “in carrying out its purposes under this [charter], [the Red Cross] may have the use, as an emblem and badge, a Greek red cross on a white ground…” The Charter grants the Red Cross “to conduct other activities consistent with” its Charter purposes.
In the 1905 Charter amendment, Congress intended the Red Cross to have the exclusive use of the emblem, and this was confirmed by the U.S. Patent and Trademark Office (PTO) when they specifically reserved an application serial number for the Red Cross to register its Emblem in EVERY class of goods and services without limitation.
J&J was concerned that it would lose its right to use the emblem on its products, so it lobbied congress to allow it to continue, or “grandfather” its use of the red cross symbol. Congress passed a law making it a crime for third parties other than the Red Cross to use a red cross symbol fraudulently but also permitted J&J and the dozens of other companies to continue to use the red cross emblem for only those products used by those companies as of that time. Congress made this a criminal statute specifically to protect the Red Cross from unauthorized users of the emblem.
“Barton Agreement” Never Ratified
In 1895, when Congress was first considering legislation to charter the Red Cross, J&J went to Clara Barton and negotiated an agreement (the “Barton Agreement”) that would have permitted J&J to continue to use the red cross emblem if Congress gave the use of the emblem to the Red Cross in a charter.
The Barton Agreement was effective only if Congress passed a specific law that would have prohibited J&J from continuing to use a red cross symbol. Congress did not pass the law, so the agreement never took effect.
Thus, the Barton Agreement was effectively rendered null and void. J&J admitted this fact in testimony before Congress in 1942 in hearings in the House of Representatives on the “Protection of the Name and Emblem of the Red Cross.” 77th Cong., 2d Sess. 279-81 (1942).
It is noteworthy that although J&J makes reference to the Barton Agreement in its lawsuit against the Red Cross, J&Jdid not quote the limiting language in the complaint, nor did it include a copy of the Barton Agreement with its other exhibits attached to the complaint, nor did it even allege ANY breach of the agreement by the Red Cross. In fact, there is no claim of ANY breach of the Barton Agreement by the Red Cross in the lawsuit.
Dispute Over Emblem Based on Profit
The Red Cross has been selling first aid kits commercially in the United States since 1903. Until now, J&J has never challenged this activity. Thus, for over 100 years, J&J and the Red Cross enjoyed their concurrent right to use the red cross emblem in commerce.
In fact, over the past century, J&J and the Red Cross have joined in lawsuits against infringers of the right of the Red Cross and J&J to use the red cross emblem.
In 2003, J&J began to complain to the Red Cross about licensing third parties to sell Red Cross first aid kits in retail stores. Red Cross tried to partner with J&J on preparedness and on this issue, but these conversations never led to an agreement.
J&J then began telling retail stores that carried Red Cross products that there was “an existing trademark dispute” between J&J and the Red Cross.
During the past several years, on several occasions, J&J has tried to convince the Red Cross to limit its use of the red cross emblem on licensed products in retail stores. Only within the past three weeks has it become apparent to the Red Cross that J&J was possibly doing more than saber-rattling. Since that time, the Red Cross has been working carefully, analyzing its legal position and weighing options.
Red Cross Disputes J&J’s Claims in Lawsuit
J&J’s first claim is for “Contractual and Equitable Estoppel.” This claim does not mention any breach of any contract, and does not mention at all the Barton Agreement. It merely claims that the Red Cross made certain historical statements that it “would not enter into such commercial licenses” regarding the sale of certain Red Cross products that J&J relied upon to its detriment.
J&J’s second claim is for “Violation of 18 U.S.C. § 706.” J&J alleges that the Red Cross and its licensing partners are somehow violating this statute. What J&J’s lawsuit fails to recognize is that this criminal statute originally was passed by Congress as a shield to protect the Red Cross from other companies that fraudulently infringe upon the right of ARC to use the red cross emblem. At no time has any federal agency, including the Department of Justice, ever claimed that the Red Cross was in violation of the use of its red cross emblem that Congress gave to it more than 102 years ago. Now J&J is attempting to use this criminal statute as a sword against the Red Cross.
J&J’s third and final claim is for a claim that does not even involve the Red Cross. It is for a separate issue against one of the Red Cross’s licensees.
In its claims for relief, J&J asks the court to order the Red Cross from undertaking any “sale to the consuming public” of emergency preparedness and related products, even on the Internet and through Red Cross chapters and outlets. More amazing is the request that the court order the Red Cross to surrender to J&J all of these preparedness products “for destruction” by J&J.
To date, the Red Cross has generated about $2 million in funds for the organization from the sale of these products in retail stores. In contrast, J&J recently made $11 billion in profits in one year. This lawsuit is not about any threat to J&J’s retail business.
In short, this lawsuit is a direct attack on the American Red Cross and its right to use the red cross emblem—a right that was given by Congress. Both the Red Cross and J&J have the legal right to use the emblem as they deem necessary to fulfill their respective missions, for the Red Cross to prepare the public for emergencies and disasters, and for J&J to make money in the marketplace. There is no merit to any of the legal claims asserted by J&J in this lawsuit. The Red Cross intends to vigorously defend the suit. We will not let J&J take the Red Cross out of the name American Red Cross.
Megan, are you affiliated with the Red Cross in some official capacity, or did you just link to them?
Johnson & Johnson doesn’t own the Red Cross emblem – the 194 governments of the world that have ratified the Geneva Conventions do. J&J has been trying to exploit the universal awareness of this emblem from the start for its own gain. It started using the emblem long after the international and American Red Cross did and then snuck its trademark through before Congress met its obligations to prevent use beyond the military and Red Cross organizations. J&J’s limited “trademark” should be retired since they clearly don’t respect the humanitarian purpose of the Red Cross name and emblem.
It’s on their website. http://www.Redcross.org
Well, for the record, here’s J&J’s statement.
The historical fact is: the red cross symbol was firstly used for humanitarian purpouses in 1864 and J&J began to use it in 1887.
The legal point seems to be: J&J firstly registered the logo in the USA, before the American Red Cross was established in this country, but years after the International Comitee of the Red Cross (ICRC) was created.
Who is copying who? In other parts of the world this issue is seen from a very different point of view, as we don’t focus on American law. This can damage J&J image in the world very deeply, as most of people don’t understand the legal difference between the ICRC and the American Red Cross and they only see the nonsense of issuing an humanitarian organization for using the symbol they created.
Megan, excellent research. I, too, linked to the website and have read both sides of the story. Maria, good point.
This is a tough spot. I only ever purchase Band-Aid Brand and other J & J products for my first aid kits and household use. We’re pretty big into safety and preparedness in this house.
On the other hand, I believe wholeheartedly in the ARC/IRC mission. Go ahead, call them “red” but they do some great things in support of our troops — relaying messages to troops in the field when a loved one at home is seriously ill or dying or dead, providing financial assistance to our troops when they can’t afford to fly home on a bereavement fare. All in addition to their humanitarian work. I believe in them so much, that I volunteer at my local chapter.
What a dilemma. But, you know, I’ve got to side with ARC on this one. Whatever profits they make go for disaster relief. It isn’t a drop in the bucket to Johnson & Johnson’s revenues. You would think that cooler heads would prevail and they might somehow agree to partner up. Why can’t ARC use J & J products in their kits? So, here is my own contribution to the fray. For what it’s worth. Go Curad!
What follows is a note I sent to J & J:
“I am writing to express my extreme disappointment in your company’s decision to bring a lawsuit against the Red Cross over it’s use of the internationally known symbol that has become synonymous with that agency.
As a veteran of the U.S. Coast Guard, a trained contingency preparedness planner, a PADI certified rescue diver, a mom, and a Red Cross volunteer, I know the value of emergency preparedness. I also know that your preparations are only as good as your gear and supplies. Because of this, I exclusively purchase J & J products for all of my first aid and medical needs, as well as for many other unrelated personal needs. To me J & J epitomizes quality, honesty, and dependability. That is until now.
After reading of your impending lawsuit against the Red Cross – one that flies in the face of everything I believed your company to embody (namely honesty, integrity, and leadership) – I am prepared to cease in my loyalty to your name brand.
In addition, I am writing, calling, and emailing every contact I have within the preparedness, planning, diving, and emergency response communities, Red Cross volunteers, mothers, fathers, friends and family to urge them to boycott your products and in turn, ask their contacts, friends, and families to do the same.
Corporate greed is no great surprise. Corporate greed regarding Johnson & Johnson is. I hope to drive that point home to you one Band-Aid at a time.”
Johnson & Johnson threatened to kill me by sending someone to list the ways that J&J could have me killed and make it look like an accident or a suicide if I tried to sue them for keeping FlossRings off the market for over a decade. Considering the ever growing body count from J&J’s Ortho Evra patch suing the Red Cross is no surprise. J&J should be boycotted and should have their corporate charter revoked.
Sincerely,
Sean Dix
The FlossRing Company
http://www.FlossRings.com
As a U.S. Army Medic in a combat arms field artillery battalion. I sure as hell was not representing J&J when I wore the Red Cross armband,flew in Medivac helos,and attended to sick,injured,dead and dying soldiers.