Red Cross sued over use of emblem

As I understand it, the American Red Cross (“ARC”) licensed its mark to companies (to be used on emergency/safety kits) for a fee which went to fund its disaster-response efforts. Johnson & Johnson (“JnJ”) is suing the ARC and its licensees over its use of the mark which it claims it has had exclusive rights to use in the sale of certain health care products since registering it in 1887. JnJ claims that by associating the mark with products and not only with non-profit relief services the ARC is infringing on JnJ’s rights to the mark. Am I the only one who didn’t even know that the Red Cross mark was associated with JnJ? I thought this symbol was generic?

After all, the Red Cross symbol has been used to tell me where the first aid station at the amusement park is and where to pick up “lives” in a video game (which has been subject to Red Cross dispute). Clearly the Red Cross is not quite a generic symbol for health as much as a regulated emblem with statutory protection.

The Red Cross emblem is an official mark that is automatically protected (under s.9(1)(f) of Canada’s Trade-marks Act) and cannot be used without consent of the Crown or who else might have authority to grant it (s.9(2)(a)). This is a layer of protection over and above regular trade-mark protection. The USA provides similar special status to the emblem (18 USC 706) which even provides up to 6 months in prison for misuse of it. It would appear that the only reason JnJ have rights to this mark was because it was registered before the American Red Cross’ Charter was approved in 1900; it was grandfathered.

I wondered if it was just coincidence that JnJ would use the same symbol as the ARC over 100 years ago. According to the International Committee of the Red Cross’ (“ICRC”) website, the Red Cross symbol was adopted in the first Geneva Convention in 1864. The website states, “[T]he emblem was to reflect the neutrality of the armed forces’ medical services and the protection conferred on them, the emblem adopted was formed by reversing the colours of the Swiss flag… Furthermore, the white flag was and remains a symbol of the wish to negotiate or to surrender; firing on anyone displaying it in good faith is unacceptable.”

The ICRC chose this symbol for very substantial and thoughtful reasons. Unfortunately I could why JnJ chose the same symbol only a few years later. I find it very coincidental that the symbol JnJ chose to designate their health products and register with legal protection was the same one that had been chosen on by the ICRC as a symbol of aid in a time of peril. Was it unknown by JnJ of such altruistic measures taken by the members of the ICRC as represented by this emblem? Unlikely – the ARC was created in 1881 though not receiving its congressional charter until nearly 20 years later. And how important is that mark to each organization? On ARC’s home page the Red Cross is the first thing you see while on JnJ’s it doesn’t appear (it is almost nowhere on the site at all).

As I’ve said I had no idea that JnJ had a Red Cross mark registered to it, but it would seem to me that if JnJ enjoyed any benefit from recognition in association with this symbol it is because they piggybacked on the respect and admiration that is associated with the altruism of the ARC and ICRC. And given the timeline mentioned above, it was likely not a coincidence. JnJ has been enjoying this benefit for over 100 years and now it is trying to collect damages from the ARC for using this symbol. That seems quite backwards to me.

Since most judgments, in my opinion, are exercises in diplomacy rather than grand policy pronouncements I would appeal to the judiciary in this case to find for the ARC. The ARC exists solely to help those in need for zero profit. JnJ may provide many helpful products but it exists under American corporate law for the benefit of the shareholders all the while benefiting from the good feelings the Red Cross emblem emanates. If the judiciary needs a diplomatic excuse for finding for ARC, that the funds are used for non-profit disaster relief should be enough to fall within the Red Cross’s non-profit relief exception.

One Comment
  1. I agree that this case must be understood within its historical context. Most trademarks are obtained through an application process. This case is unique. These trademark rights are based on a complex agreement between congress, the ARC, and J&J. Treating the Red Cross emblem the same as any other trademark would actually signal a shift in government policy. If all intellectual property rights are derived from a bargain with the state, then this bargain has involved exceptional negotiation. In order to maintain the fairness of this bargain, further negotiation may be needed.

    Sometimes two parties can share a single trademark by dividing rights between different wares. This legislation is extraordinary because it distinguishes ARC as a nonprofit entity. Congress assumed that these trademark rights could be clearly divided between nonprofit and commercial entities. However, the growing number of social enterprises such as microlenders blur this distinction. As opposed to relying exclusively on donations, social entrepreneurs embrace market means to achieve nonprofit ends. The ARC does just that by licensing its trademark for first aid kits, which are sold in order to fund humanitarian services. Congress failed to predict this new development. But after one century, legislative shortcomings are expected.

    If the federal district court rules against the ARC, congress must intervene for this special case. Not because anyone with altruistic intentions can infringe a trademark with immunity, but because congress made a unique statutory promise: that the ARC can use the Red Cross emblem to serve its humanitarian purpose.

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