Johnson & Johnson Loses Major Trademark Lawsuit

Dekortage writes "As previously discussed here, the health-products giant Johnson & Johnson sued the American Red Cross over use of the ubiquitous 'red cross' logo. J&J has now lost. The presiding judge said Johnson & Johnson's claim against the organization was doubtful because the manufacturer entered into a brand-sharing promotional agreement with the American Red Cross in 1986 — not to mention that the two organizations agreed to share the logo way back in 1895. Sounds like J&J may need to crack open some Tylenol and Band-Aids."

Comments

This lawsuit seems more complex

[jesterzog]

When I think of a red cross, I immediately think of emergency relief, supplies, etc. I don't think of household products. What did Johnson & Johnson see in trying to seize (what I feel is) a pretty well established brand with a certain set of qualities (such as disaster aid)?

I'm presuming the court made the appropriate decision here, but it sounds as if the story's more complicated than a bunch of crazy lawyers filing a ridiculous lawsuit. The problem that Johnson & Johnson had was that the Red Cross had (apparently) started to commercially license its symbol to businesses that were probably in direct competition with J&J, and this would have been unforseen in the past when J&J probably saw and treated the Red Cross as a completely non-commercial organisation, with largely uncommercial products, and where any place it used the logo were at best for fundraising.

If it suddenly starts licensing its logo, though, then other companies can start using it to promote their own commercial products in the same domain as Johnson & Johnson in a way that could potentially confuse customers. In other words, any business that wants to start leeching from Johnson & Johnson's pre-existing brand recognition and loyalty might be able to throw a comparably cheap donation towards the Red Cross as a licensing fee, without having to negotiate at all with J&J, and make their commercial packaging potentially confusing with Johnson & Johnson's. This could be a real problem for J&J in the case of competitors who want to get their products shelved right next to it in supermarkets, for instance. Apart from the licensing fee, the Red Cross isn't even benefiting anywhere near as much as J&J might be losing.

I think the lawyers probably wanted to prevent the Red Cross from being able to give other businesses what could be a huge commercial advantage and steal its own good will, when under normal circumstances this would all be prevented by trademark law. Sure, J&J has probably benefited a lot from having a logo that looks like the Red Cross, but it sounds as if they've at least had it for as long as the Red Cross has.

Re:When you're hiring lawyers...

[jonadab]

Yeah, but how many people were previously aware that the Red Cross logo is also a trademark of Johnson & Johnson? Personally, I had no idea they'd ever used that mark. The things I most associate with them are a certain color of yellow and the phrase "no more tears". A red cross inscribed in a white square, on the other hand, is something I associate mainly with blood drives.

Which might have something to do with the reason J&J lost. The Red Cross actually *uses* this logo extensively. J&J pretty much has a different logo or appearance for each and every product they sell. Which product do they use the red cross logo for? Whatever it is, I don't believe I've ever seen it, or even an advertisement for it.

it sure is a religious symbol

[nguy]

The fact that it was a cross has nothing to do with religion (at least, not directly) and everything to do with Switzerland.

Are you joking? Of course, it does. The cross in the Swiss flag represents the Christian cross, and the people who picked it in 1863 were fully aware of that. The fact that the Red Cross not only added the Red Crescent as a symbol, but also in 2007 added the non-religions Red Crystal, shows that this is widely recognized to this day.

Personally, I wish they would make the Red Crystal standard and get rid of the two other symbols; retaining religious symbols in aid organizations perpetuates the misconception that religions have something to do with altruism.

Re:Brand recognition

[slash.duncan]

> When I think of a red cross, I immediately
> think of emergency relief, supplies, etc.

That's what I thought of as a kid. Now, I know the history previous to that. Now, I think of the Crusades and the terrible things done in the name of Christianity during them. That's where the red cross on a white background originated.

The Knights Templar (Temple Mount Knights, who took a vow of poverty (communal property, as the term meant at that time) and allegiance to the order, who originally protected the pilgrims during a period when most other knights were ignoring them because there wasn't profit in their protection, who were a time the most powerful Military Christian order after so many donated so much in turn, who set up the first European and Crusader banking system, had as their naval flag the original white skull and crossbones on a black background later associated with pirates, who traded with the Muslims and introduced gauze (from Gaza, the city), muslin (from Muslim), and candy (from al-kandiq) these were one of the orders that flew the red cros on a white background, the original symbol of the crusades.

Similarly with the Knights Hospitaller, whose order founded and staffed the medical "hospitals" the pilgrims and Crusaders used. This is actually the origin of both the word "hospital" and the association of the red cross with medicine. Of course, while they were a welcome sight to many a wounded Christian Crusader or pilgrim, obviously, the Muslims had a rather different viewpoint! No WONDER they couldn't tolerate the Red Cross as a medical symbol! To them it meant the rape and pillage, the savagery of the Crusades! So they went with the Red Crescent.

However, the Red Crescent is also a religious symbol, so today there's a third symbol coming into use, designed to be religiously neutral while still being unmistakable for anything else. It is often used in international contexts, particularly in the mid-east. This is the Red Crystal, a diamond shape.

So, ideally, the Red Crystal will eventually come to have the positive associations of the Red Cross and Red Crescent today, without the sectarian and cultural negatives. It's also worth noting that Cross, Crescent, and Crystal, all start with C, so the ARC (and other "Red Cross and Red Crescent" organizations worldwide) could adopt the Crystal without even changing initials.

Wikipedia is a place to start, anyway. There are links from there elsewhere, and I've included another informative link on the Knights Templar as well as a Google link, below.

Wikipedia Red Cross/Crescent/Crystal (and some others)
http://en.wikipedia.org/wiki/Red_Cross_(symbol)

Wikipedia Knights Templar
http://en.wikipedia.org/wiki/Knights_Templar

Wikipedia Knights Hospitaller
http://en.wikipedia.org/wiki/Knights_Hospitaller

Also see Wikipedia Teutonic Knights
http://en.wikipedia.org/wiki/Teutonic_Knights

A rather informative (altho obvious viewpoint taken) history of the Knights Templar (on first page of the below google)
http://www.electricscotland.com/HISTORY/kt1.htm

Google on: "red cross" history crusades
http://www.google.com/search?q=%22red+cross%22+history+crusades

Re:The Red Cross caused this problem

[kyz]

The International Committee of the Red Cross, of which the American Red Cross is a member, has special worldwide exclusive rights to the Red Cross symbol via the First Geneva Convention (passed 1864).

The Red Cross symbol can be used to indicate ICRC member organisation presence on battlefields, and it can be used as or in the organisational logo of any ICRC member organisation. The First Geneva Convention prohibits any other use of the Red Cross, worldwide.

The USA ratified this in 1882, meaning they agreed to enforce this restriction. However, they did not pass any actual law to prohibit it until 1900. In 1887, the US government approved Johnson & Johnson's trademark application to use the Red Cross on medical products, which broke their commitment to the First Geneva Convention!

The 1900 law prohibits what Johnson & Johnson did, but has a clause saying that any infringements prior to 1905 (i.e. Johnson & Johnson) will not be covered. They're still illegal internationally since 1864 and illegal in the USA since 1905.

Johnson & Johnson want to argue that they have special privileges to do something which both very profitable for them and is illegal for anyone else, namely usurping the symbol of Red Cross and milking its iconic status for purely profit-making enterprise. There is no agreement to take all profits made by branding J&J stuff with the Red Cross and hand them over to the ICRC or ARC.

I understand that J&J donated about $5 million last year to the Red Cross, but Johnson & Johnson made a profit last year of $38.27 billion. The Red Cross are not getting in their way of making a healthy profit. I don't have the figures on what percentage of that is directly attributable to selling on the back of the ICRC's global reputation, but it doesn't come with the ICRC's permission.

The American Red Cross was founded to provide free medical and humanitarian aid. Johnson & Johnson was founded solely to make money. The American Red Cross may be idiots and selling themselves out, but they're not the ones on shaky legal ground here. It only takes one stroke of the pen to remove the last line of 18 U.S.C. Â 706:

Whoever wears or displays the sign of the Red Cross or any insignia colored in imitation thereof for the fraudulent purpose of inducing the belief that he is a member of or an agent for the American National Red Cross; or

Whoever, whether a corporation, association or person, other than the American National Red Cross and its duly authorized employees and agents and the sanitary and hospital authorities of the armed forces of the United States, uses the emblem of the Greek red cross on a white ground, or any sign or insignia made or colored in imitation thereof or the words "Red Cross" or "Geneva Cross" or any combination of these words

        Shall be fined under this title or imprisoned not more than six months, or both.

This section shall not make unlawful the use of any such emblem, sign, insignia or words which was lawful on the date of enactment of this title.

It bears pointing out that use of the logo was unlawful everywhere except the US on that date, and that the US is breaking its commitment to the First Geneva Convention, ratified prior to issuing the J&J trademark, by permitting said trademark.

If I were a lawmaker, I'd look into righting 100-year-old wrongs.