The world’s largest for-profit healthcare products conglomerate, Johnson & Johnson (J&J), is suing the American Red Cross (ARC) over its use of the life-saving emblem - the red cross on a white background.
On 8 August J&J filed a civil complaint in the US District Court in New York charging the ARC with infringing its trademark for commercial use of the red-cross-on-white-background by licensing it to for-profit companies to produce items such as baby mitts, nail clippers, combs, toothbrushes and humidifiers, which directly compete with J&J’s own products.
The trademark issue is murky and cloaked in legal complexities dating back over a century, but ARC President Mark W. Everson immediately fired back, calling the suit “obscene” and voicing the hope that the courts and Congress would not allow J&J “to bully” his organization.
“We are not asking the American Red Cross to stop using the Red Cross symbol for its legitimate purposes,” said J&J spokesman Jeff Leebaw. “We are asking that it stop licensing the symbol to for-profit companies in violation of our exclusive rights in the commercial arena”.
“J&J made considerable attempts to resolve this issue cooperatively, including an offer of mediation that was turned down. We sought resolution in the courts very reluctantly when there was no other solution. Our primary goal is to restore the long-standing legal boundaries that have surrounded the use of the Red Cross trademark for more than 100 years,” he added.
ARC spokesperson Carrie Martin told IRIN in response: "The American Red Cross is committed to preparing Americans for life's emergencies and has offered emergency preparedness and health and safety products to the public for more than a century.
“The products the Red Cross now offers in partnership with its licensees are part of this commitment. J&J's lawsuit seeks to interfere directly with the American Red Cross mission, even going so far as to seek the destruction of products."
The ARC, which J&J says is only allowed to use the emblem for non-profit purposes, stresses that all profits it receives from the licensing are ploughed back into its non-profit humanitarian work and that in 2006 it received only $2 million from the sales, although the licensees cited in the suit - Learning Curve International, Magla Products, Water-Jel Technologies and First Aid Only - do profit from the sale of products bearing the emblem.
For its part J&J - which in the suit called for the ARC to stop using the emblem on items sold to the public, surrender its stock of such products for destruction, turn over all proceeds from the sales with interest, and pay unspecified punitive damages along with attorney fees - stresses that it supports the ARC and donated more than $5 million to it in cash alone over the past three years.
J&J acquired the trademark in 1887. That was six years after the ARC began using it but years before the organisation was officially chartered by Congress in 1900. The emblem was used by Red Cross organisations in other countries even earlier, at a time when trademarks were not necessarily valid across borders.
Under a 1905 Congressional amendment to the charter, the ARC was granted use of the emblem “in carrying out its purposes under this [charter]” and “to conduct other activities consistent with” its Charter, but J&J claims that “carrying out a commercial enterprise or business is not and never has been one of the purposes” of the ARC.
Congress passed a law in 1905 making it a crime for third parties other than the Red Cross to use the symbol fraudulently but also permitting J&J and dozens of other companies to continue to use the emblem for those products used by them as of that time.
The ARC maintains that Congress passed this criminal statute specifically to protect the Red Cross from unauthorised users, but J&J is citing it as a major factor in the suit.
“For a multi-billion dollar drug company to claim that the Red Cross violated a criminal statute that was created to protect the humanitarian mission of the Red Cross - simply so that J&J can make more money - is obscene,” Mr Everson said on the day the suit was filed, noting that since 2004 the ARC has worked with licensing partners to create first aid, preparedness and related products that bear the Red Cross emblem.
“The Red Cross products that J&J wants to take away from consumers and have destroyed are those that help Americans get prepared for life’s emergencies,” he added.
J&J claims the ARC made certain historical statements that it “would not enter into such commercial licenses” regarding certain products that J&J relied on.
This does not pass muster with ARC President Everson. “We hope that J&J will act as a good corporate citizen and recognise the right of the ARC to our own emblem to carry out our mission - not stand in the way,” he said in a statement.