Does Intellectual Property Involve Morals?

Am I being naïve? I hope not. I sincerely hope that I am not being naïve believing in the fairness and equity of the law, and believing that the courts are actually being just – especially when they judge in cases involving humanitarian organizations such as the Red Cross.

The company Johnson and Johnson, the health-product giant that uses a red cross as its trademark, sued the Red Cross in the beginning of August over their use of the emblem. J&J admits that the Red Cross has a right to use the emblem, but only in connection with non-profit relief services.

On the face of it this case looks like the classic fight; the good guys against the bad guys, the honourable Red Cross as the helpless victim that is being bullied by the profit-making big company, who presumably only sued the Red Cross as a PR stunt.

According to the CIPO (Canadian Intellectual Property Office) a trademark is a word, symbol, design or combination of these that is used to distinguish the wares or services of one person or organization from those of others in the marketplace. It is claimed that trademark was designed for the purpose of protecting consumers, and trademark is not suppose to be about control and ownership. The system aims to help eliminate confusion between other similar and competing brands.

In this case we can find both sides of the trademark. On one hand there are probably big differences for consumers between buying a first aid kit from the Red Cross – and thereby supporting them financially –from buying the same first aid kit from J&J. According to the Red Cross, 91 cents of every dollar the Red Cross spends is being invested in humanitarian services and programs. So consumers would highly value being able to support the Red Cross instead of just contributing to the wealth of J&J. On the other hand it seems likely to me that J&J owns the trademark on the red cross symbol and have a licensing arrangement with the Red Cross organization.

There is no doubt that this symbol is an incredibly valuable asset. All over the world it is associated with first aid and non-profit charity. Without doubt the goodwill of the humanitarian organization will influence the judge. I mean, is it even possible, that a decision may result in the Red Cross not being able to use – yes – their red cross emblem. Is it not like saying to Macdonald’s that they are not entitled to use the golden M?

Even though as a judge it must be difficult to go against an organization as the Red Cross – and even though I clearly sympathize with the Red Cross – I don’t think that the trademark rules should be applied any differently in this case than in any other case. The Red Cross should not be able to get away with trademark infringement – if they are infringing – and thinking: “J&J won’t dare sue us – and if they do the reputation of our organization is enough to win the trial”. It bears emphasis that there should be equality before the law – even though we are dealing with the worlds’ largest humanitarian organization which is preventing kids in Dafur from starvation, finding shelter for the people of Indonesia after the earthquake and providing care to the victims of Katrina in New Orleans.

J&J are by this lawsuit defending their trademark. But is it morally correct for J&J also to ask for the products to be destroyed and punitive damages? I believe that those claims are going well beyond protection of their trademark in the red cross emblem.

Therefore I hope that the moral aspect of this case is considered before the court. The goodwill of the Red Cross – that undoubtedly is going to sway the judges – will hopefully not influence the interpretation of the trademark law and the agreement between the Red Cross and J&J. But I am hoping that – even if the Court finds in favour of J&J – they will dismiss the claims of destroyment and damages, because that is just not right. Taking it to its logical conclusion, it would result in fewer funds for the children in Dafur, the poor people in Indonesia and the homeless people in New Orleans. Do you really want a legal system going that way?

So am I being naïve believing in fairness and morals? Maybe. But as a soon-to-be lawyer – hopefully working with Intellectual Property – I am entitled to have faith in the legal system until someone proves me otherwise, right?

One Comment
  1. Heidi, I do not believe you to be naive, but in my view IP law should not involve morals. J&J may look like a pharmaceutical bully, but their cause of action may nonetheless be valid.

    I doubt however, that it will come down to a question of whether the Red Cross will be able to continue to use the emblem, albeit for the agreed upon non-commercial uses. I do not underestimate the value of the Red Cross and their humanitarian contributions, but I question the competence of their legal counsel, if any, in advising them that their actions were not “improper”. In refusing resolution through mediation the Red Cross is wasting their charitable funds on costly, unnecessary litigation.

    I agree that the remedies sought by J&J, delivering up and punitive damages, are excessive but for slightly different reasons. I hesitate to weigh the merit of the remedies based on morals. The intent and identity of the parties should not influence the legal findings of a case. IP laws are designed to protect consumer choice and by extension, promote the public interest. The remedies sought by J&J are more egregious than the breach itself. The products in dispute are similar to those sold by J&J and their sale in no way damages their reputation.

    Both parties in this dispute appear to be acting aggressively and with bitter motives. I can only hope that a resolution is reached rapidly so that both parties can resume their important roles in society.

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