J&J suing the American Red Cross over use of emblem – is that obscene?
November 13, 2007 by Silja ReschkeFor more than a decade one of the world’s most recognized emblems – the
red cross on a white background – has been shared amicably between the
commercial giant health care company, Johnson & Johnson (J&J), and the
non-profit help organization, American Red Cross (ARC). J&J has used the
symbol on its commercial products and the ARC as a symbol of its relief
efforts on foreign battlefields and in disasters like floods and tornadoes.
Suddenly this life-saving symbol has become the object of a big lawsuit in
the US. J&J has sued ARC over its use of the emblem.
In many newspapers, e.g. the New York Times, the president of ARC, Mark
W. Everson, has been quoted saying that the company’s actions were
“obscene” and “simply so that J&J can make more money.” But is this
lawsuit really obscene?
What is at stake here is a trademark issue. Who has the legal right to use
the emblem?
Despite J&J’s ownership and use of the mark since 1887 on a wide range
of products, including wound care products and first-aid kits, ARC has the
right to use the red cross emblem by a 1900 Congressional charter in
connection with the agency’s founding charter. ARC was given the right to
use the red cross design in connection with its efforts to provide
voluntary relief.
Further, according to the lawsuit, J&J entered into an agreement with
ARC in 1895. The agreement acknowledged J&J’s exclusive right to the red
cross emblem as a “trademark for chemical, surgical and pharmaceutical
goods of every description.”
But now J&J has sued ARC over its use of the emblem. J&J claims that
ARC is overstepping its bounds and is infringing J&J’s trademark for
commercial use of the emblem by licensing it to for-profit companies to
produce items that directly compete with J&J’s own products. J&J is
claiming that ARC only has the right to use the emblem in non-profit
earning endeavors.
Assuming that ARC is infringing J&J’s trademark rights, why should J&J not
fight for their rights? ARC is a praiseworthy organization but why should
they have the right to infringe someone else’s property? Non-profits
cannot venture into the commercial arena and then insist that the rules
defining this arena do not apply to them.
People have been criticizing this lawsuit saying that this is just another
PR stunt from J&J to earn more money. Some people also say that J&J are
selling products for billions of dollar a year and that ARC is not posing
any threat to J&J’s market share. These arguments might be true but the
essential point in this case is the proper use of the trademark rules.
The red cross emblem is being misused in many medias, e.g. in video games
as a sign of health and aid, and encourages others to believe that the
emblem of the Red Cross is `public property’ and can be freely used by any
organization or indeed for commercial purposes. This lawsuit is a chance
to clarify who has the legal right to use the emblem. Thus, in my view
this lawsuit is important and not “obscene”.
Further, this case has a fundamental importance concerning the problem of
an organization licensing the right to use property that belongs to
another party.
If J&J, as claimed, owns the right to the trademark and ARC only has
the right to use it in non-profit purposes, then ARC cannot give license
to a third party to use the symbol in a commercial matter. ARC cannot sell
something that does not belong to them. It infringes the trademark rules.
More and more non-profits have woken up to the opportunities presented
by licensing, particularly the ability to create funding streams other
than charitable donations. In other words, the profit motive has become a
motive for the non-profits.
If J&J wins this case it could also be a setback for other non-profits
that are now benefiting from the increased revenues enabled by licensing
if this case gives their own leaders a pause about the feasibility of
building a licensing program.
Hence, the outcome of this lawsuit is important in many ways. Even a
globally known and respected aid organization has to obey the law.
Therefore the lawsuit is not obscene. It will clarify the question about
who has got the legal right to use the red cross emblem and the extent of
this use.
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I agree that the American Red Cross (ARC) must follow the law of intellectual property as no one is above the law, not even charities. Intellectual property rights for trademarks are very important in order to prevent confusion of the customer as to the source of the product. In this situation, it seems that as both ARC and J & J have products that are similar (i.e. goods that are related to safety preparedness and health) and that the use of the mark on further products of this type would not cause any more confusion than is already present. In fact, I think it is very likely that most people associate the emblem only with safety and health in general or the ARC and not with J & J or their products. Therefore, I think there may be a strong argument against the mark’s continuing distinctiveness for J & J. If the mark is no longer distinctively associated with J & J, then there can be no infringement by ARC, the other companies to which they are licensing or anyone else who wishes to use this mark as a sign of health and safety products. In fact, ARC may be able to quash J & J’s rights to the mark and register it under their charity instead. They could then license it to whomever they choose and may in fact be an excellent source of funding for the charity to do more for the general public.