There is a strange furore brewing over pharmaceuticals giant Johnson & Johnson suing the American Red Cross over their use of… the Red Cross… on certain commercial products.
My first reaction was “What the…? Have J&J gone completely nuts?”
But then I actually read the background to the story from someone who works at J&J, and also got some background from someone I know who works with them, whereupon I realised actually it is the American Red Cross who have gone nuts. In fact they are worse than nuts, they are acting both unreasonably and quite dishonourably.
Clearly J&J must be aghast by the PR mess that taking legal action against a venerable institution like the Red Cross is going to stir up… and the Red Cross knows that. And so it is very clear to me that when you read the Red Cross press release, what is going on here is a cynical bit of capitalist bashing so that the Red Cross can use their sainted reputation to tear up an agreement they reached over the appropriate use of that Red Cross symbol in… 1895.
Now you might think that how can J&J claim to own the rights to the Red Cross symbol in the USA? Sure, that seems weird, but the fact is the American Red Cross did agree that J&J did indeed own it all the way back in 1895, so that is an indisputable fact, and in return for J&J’s forbearance for the Red Cross using that symbol (not to mention a century of monetary and product donations… but then as we all know, no good deed goes unpunished), the Red Cross undertook not to use the symbol as a logo on products in the USA that directly compete with J&J products that also use that symbol. And so it was for one hundred years.
Until one day the Red Cross decide it no longer suits them, no doubt on the advise of some overpaid shister. It is a shameful think that an institution that people take to represent charity and honour can quite literally trade on that perception in order to act dishonourably. Sometimes big companies act appallingly, but sometimes they are just big targets for other who act dishonourably. J&J have no choice but to defend their trademark but the only winner in all of this will be a bunch of crapulous American lawyers. Such stupidity.
Update: some more background here.
…and those of us who will find this freaking hilarious.
Not that hilarious when you consider the Red Cross will waste a great deal of charitably donated money on the same parasite lawyers who are probably behind this whole farce.
Perry,
Do you also support Anheuser-Busch’s claim to the Budweiser trade name over that of the brewery that’s based in, errr, Budweis?
Why? Did the Budvar brewery agree to not use the term 100 years ago to market beer?
“Did the Budvar brewery agree to not use the term 100 years ago to market beer?”
Is there any evidence – outside the bald assertion on the Johnson and Johnson blog – that the Red Cross agreed to J&J’s exclusive rights to the Red Cross symbol?
Yes actually, there is, as one might expect with 100 year old agreement.
“Is there any evidence – outside the bald assertion on the Johnson and Johnson blog – that the Red Cross agreed to J&J’s exclusive rights to the Red Cross symbol?”
A 100-year history of uncontested trademark usage to represent commercial health-care and first-aid products?
The ARC first used the mark in conjunction with its charitable activities in 1881, according to US PTO records, but the use of a red cross as a trademark predates that. A simple trademark record search shows that a red cross emblem was used by many companies to promote all sorts of goods and services, from shoes to vegetables. J&J has used that mark for over 100 years to promote and sell its first-aid supplies. The fact that the respective uses of the mark persisted for as long as they did, when the potential for brand confusion exists, implies the existence of an agreement between the two.
Trademark is very context sensitive. A mark is registered for a very specific purpose, and the longer it is used in that context without contest, the more standing and reputation it gains. If the ARC had disputed J&J’s use of the mark in 1895, they would have had a case. Absent any contract to the contrary, the ARC has by action ceded the practical use of that mark to J&J, because for over 100 years, J&J has used the mark for first-aid products and the ARC has not, and has not disputed J&J’s right to do so. A century later, they cannot usurp that use of the mark for their own purposes. Not allowed. Not theirs.
Unless the Red Cross can show that (1) the general public considers the Red Cross emblem a generic symbol representing no particular product or organization and that (2) J&J never took any legal action to protect their trademark i.e. that the trademark is undefended, then the Red Cross doesn’t have a leg to stand on in black letter trademark law.
Its important to remember that trademarks exist to protect consumers, not companies. The law examines whether or not a trademark accurately communicates to consumers which company or entity created the good. Unenforced trademarks allow the unscrupulous to defraud consumers by making them think they are purchasing product A from company One when they are really purchasing product B from company two.
I find it very telling of an individuals prejudices that they assume that the loss of a trademark hurts only big companies and is thus always a good thing.
Perry,
Any chance of a link?
Back in the 70’s and 80’s I worked for a private third world relief and development agency. Johnson & Johnson was one of the companies that provided the stock that we in turn shipped to third world hospitals. (Johnson’s Wax and Servicemaster also come to mind.) These are totally private companies doing what QuaNGOs like Red Cross/Red Crescent would have you believe requires the force of law.
These companies are the free market/libertarian answer to congressionally voted foreign aid programs. And the fact that they make really good products at a competitive prices is all the better.
I have been concerned about Red Cross/Red Crescent’s progressively stronger identification with entitlement (it’s own) and their press release just confirmed it to an astonishingly transparent degree. My doubts have been replaced with disgust.
Simon, your link has been provided. Read the Red Cross press statement. What does it say about property rights? What does it say about entitlement? What does it say about the fundamental values of the people running that organization? Did you see even a pretense of a legal claim? It is dripping collectivism from every word. It is one big statement of “I claim good intentions. Therefore I can do what I please. Everybody else be d….”
Exactly, MidW. When some smartarse professional “charity” worker in the ARC came up with this idea, no doubt the long-standing agreement with J&J was quietly mentioned (I like to think by an old, grey-haired, bespectacled volunteer, who never saw anything like it in his day, but that’s just me), to which I’ll bet the answer was, “We’re the Red Cross! What are they going to do? Sue us?”
That attitude is bullying, no matter where it comes from, and it must be challenged. A deal’s a deal.
The Red Cross a venerable charitable institution? Not in Canada where their blackmail policies of blood and blood products distribution led to the almost total destruction of the nation’s haemophiliac population as well as wives of haemophiliacs and children of these families born with the AIDS virus. It all began with pandering to a vociferous homosexual lobby and insane policies of political correctness. I’ll spare everyone the details but the outcome has been that the Red Cross is more or less as dead as the thousands they condemned to death by denying them the possibility of alternative blood supplies.
I do know that the use of the Red Cross mark by the American Red Cross is specifically protected by federal statute (so are the Olympic Rings or anything “confusingly similar” – except Audi’s rings [of course there was a lawsuit over that one] with respect to the US Olympic Committee). I don’t know if or how that might impact what J&J are doing.
andrewdb,
Contrary to the appearance that is created by a lawsuit, J&J is defending, not attacking. It is a 112 year old agreement on trademark use. American Red Cross has unilaterally abrogated and is in effect, building on property they do not own. It is a question of whether the Feds will exercise eminent domain on a trade mark. Which is what the American Red Cross expects them to do.
That would be a terrible precedent.
It recalls to mind the Lebanese ambulances hit by those magic missiles. The Red Cross used their privileged reputation to try to cover up that one, too. A lot of the NGOs seem to have been infected – the Red Cross isn’t as bad as some, but it’s not immune. But the subversion of the Red Cross to political causes is particularly dangerous because it is involved in the laws of war and so on.
J&J should probably emphasise that they’re not going up against the Red Cross, but only the American branch – that should emphasise that it’s a particular group within the organisation trading on the Red Cross’s reputation to cheat and steal, which should place the moral burden back where it belongs. It’s people within the Red Cross who are attacking its values, not J&J.
Although giving any organisation Absolute Moral Authority is a very bad idea. Just take a look at the UN human rights council…
andrewdb,
This may have some bearing on thoughts about the “federal statute”. I underscored the key sentence.
I like how the American Red Cross (not to be confused with the Red Cross, which is a totally different organization) tries to justify this by saying they aren’t profiting off of the sales. As if that makes violating the contract acceptable. If the courts find the ARC’s favor that would set a pretty bad precedent. Just imagine all the contracts that could be legally broken by claiming that breaking them didn’t benefit the breaker.
The worst part is that it doesn’t appear that J&J asked for anything in return for the use of the symbol. For the ARC to stab them in the back by marketing competing products is just low.
I have hated the ARC’s tactics since 1983. I was a medical lab tech in the USAF. Twice a year we held major blood drives to fill their coffers. We used government supplies, are facilities and our personnel to conduct those drives and GIVE them more than 3000 units for each drive. One day while working in the Blood Bank department I was short a pint of whole blood (rarely occurred) and contacted the ARC to send us one. They did at a cost of more than $800! I petitioned that we no longer conduct blood drives for them, but the brass wouldn’t listen. When 911 happened and the ARC started taking donations I told my wife that money would NOT go to the victims and we weren’t donating to the ARC. Friends wanted to start helping the ARC and I told them not to do it because all monies go in the main fund and only a small portion would go to NYC. They looked at as if I were crazy. But when the news broke about the ARC’s plans with the money. I gave a big I told you so. This classless tactic by the ARC is not surprising to me.
I just had another though ….
ARC has to get those bandages they put their name on somehow, and I doubt they have their own manufacturing plant. Where are they comming from? A great solution to this whole mess would be for J&J to be the one supplying the medical products for free or at a reduced price and claim a tax write-off.
This is, of course, J&J’s perogative, but it would settle the trademark issue in J&J’s favor without having to resort to lawyers. It would probably be far cheaper as well, not to mention good publicity for everyone.
I’ve never given to the ARC. Up until the 70’s or early 80’s $0.25 was taken out of EVERY military pay check and given to ARC. In return, the military was suppose to get services from them such as confirming family emergencies (eg father dying) & loans to help military members get home. But getting hold of ARC could be difficult. Once the local recruiter had to go to the hospital to confirm the emergency. Anyone who had to take an ARC loan soon regretted it. The first payment comes within a week & they weren’t slow to garnishee wages, even if it left a family with too little to live on.
I’m a volunteer with them. I’m certified as one of their instructors, and teach for them about once a quarter.
The ARC’s training is very much a profit center. A class in general first aid and adult-infant-child CPR, sponsored by the chapter and taught by a chapter volunteer costs $65 a head from them. If I want to rent the dummies and course materials (with mandatory non-refundable book purchase) and run the class on my own it’s about $30 per person. If I don’t want to rent a damn thing, but want to still be able to claim that the course met ARC standards and followed the ARC curriculum, there’s still a fee even for that.
Of course, God help you if you need to get something out of them that you already paid for.
They also fund-raise at work, only they try to pressure the bosses into following the same sort of extortion tactics that the United Way uses.
And I could start ranting on about how they’re a few years behind everyone else at implementing new CPR/Basic Cardiac Life Support guidelines. Or how they’re fucking worthless at updating a first aid class to include properly-aggressive hemhorrage control, which WILL save lives. And I was once threatened with decertification for mentioning aspirin during a section on heart attack. But that would be wandering far afield.
I guess my point is, they’re a non-profit only in a technical sense. They seem to be primarily a vehicle for turning volunteer instructor time (for which they typically collect $50/hour on average) into salaries. Occasionally, some soap and baby wipes and bottled water are delivered to disaster areas where they can be looted.
At any rate, IMHO the only advantage their education offers over the American Heart Association BLS program is availability: The AHA program is rarely offered to lay rescuers. The only advantage their emergency relief programs offer are the rare cases where the Salvation Army would be too sectarian (like the tsunami a few years ago). And the only advantage their blood program offers is…in Colorado, none, since they have no presence thanks to a competing volunteer blood system.
(Millie: Have a link to the problem in Canada?)
Sunfish, the short answer is no but try googling Kreever Commission. Justice Kreever was appointed to get to the bottom of the whole sorry mess.
I am aware of all this because my niece, a lawyer, was married to a doctor with haemolphilia who was also a researcher on children’s immunological diseases at Toronto’s Hospital for Sick Children and who had a huge reputation in his field. Needless to say he died and she did endless pro bono work on behalf of parents of children who died because of tainted blood products as well as others who were victims of what has often been referred to in Canada as a holocaust.
Though J&J’s trademark is a bit shaky. The symbol has become too generic. Slap a red cross on any white box, and people would recognize it as a generic first aid kit, not a Johnson & Johnson product. The symbol has already become a generic symbol of a category of products, not a particular product itself.
Rajan R,
I think you are confusing market share with generic.
That fact that at one time most copy machines were made by Xerox and carried their trademark did not make “Xerox” a generic name. The fact that most computers were at one time made by IBM (it’s been a few years) and many people called any computer an “IBM” didn’t make that a generic name. The fact that by far the majority of computer operating systems today are called “Windows” and have things that kind of look like windows doesn’t make “Windows” a generic name.
In my entire life, and I spent several years in a medical supply company, I have never seen anything bearing the Red Cross that was not either a money raising mailing, part of my first responder training materials, or a product manufactured by Johnson & Johnson.
Since your comment suggests otherwise, I think it is incumbent on you to name any product subject to US law that carries the label and is not representing either Red Cross activities or Johnson & Johnson products. Otherwise your argument is as wrong as all the previous claims about Xerox, IBM, Windows, and for that matter many more, like Polaroid (remember them?), Fridgidaire (another oldie) and newer ones like IPod.
The 1895 agreement was essentially an admission, by J&J, that they didn’t have the rights to the red cross symbol. The J&J VP of Weasel Words, who posted the blog linked at the beginning, tries to obscure that fact, but, that’s what it is.
The 1905 Congressional action seems to give the Red Cross the right to do whatever the hell they please with the logo, regardless of what they may have agreed to prior to that. It seems to me, J&J should have changed their marketing at that point, but didn’t, because J&J was the one profiting from any confusion. And, now they think they see a way to profit even more.
J&J is going down on this one, in a big way.
The American Red Cross is a unit of government. To even use the term QuaNGO is generous. Read the lastest revision of 2005.
Among other things, read what the law is pertaining to the “Emblem, badge, and brassard”. It is found in 36 USC Sec. 300106. This is the entire text of what the badge may be used for:
So what are those “purposes”? They are contained in 36 USC Sec. 300102. This is the entire section:
I can interpret nothing in those paragraphs authorizing the American Red Cross to license the Red Cross trade mark for marketing purposes.
Furthermore, we have the situation of the government using legislation to assign itself (the American Red Cross is clearly a government agency) a preexisting trademark (act of 1905) and then licensing that trademark for profit. To my thought, the plans one has for their profits (or their tax exempt status) do not alter the fact that they are doing something for profit. While this may or may not be legal, it is not in this case and I hope nobody here thinks it is either ethical or appropriate.
I have also seen some rather disingenuous comments on other blogs equating the authority to distribute Red Cross first aid kits at cost with authority to license the trademark to sell household products like humidifiers at retail for a share of the profit.
Huh? Did you actually read it or is that just what you want it to mean???
The American Red Cross is NOT a governement organization! They don’t receive any funds from the government.
Um, Diane? Perhaps you should check you ‘facts’ before you relay them to us?
From “CRS Report for Congress(PDF)“, “The Congressional Charter of the American National Red Cross: Overview, History, and Analysis”, dated March 15, 2006:
And these are the two lines the paragraph refers to:
That was for fiscal year 2003. I found this for fiscal year 2004. If you look among the others, you will find $70,000,000 for the Red Cross.
Also, I find it suggestive that the American Red Cross chose to mix “government fees and contracts” into a category that totaled over $2,311,000,000 (that’s over 2.3 Billion dollars!) in such a way that not even the report for congress could present a breakout.
And none of these numbers so far address state and local government funding, but I also found requests like these:
$300,000
$400,000
or $100,000 here(PDF).
But sometimes it’s just a little bit more. Like $5,000,000 here. And $5,000,000 here.
It is an institutional pattern at all levels. As is the effort to downplay it. There are a number of people circulating the mistaken idea the Red Cross is supported entirely by donations, unfortunately including places like Answers.com, and infoplease.com, and factmonster.com, and columbia.thefreedictionary.com.
You probably noticed that the text in most of those was the same. But wrong. I did not find any American Red Cross owned pages that made the claim, but very many regional affiliates made the claim. I didn’t bother to audit each one and as long as they don’t distribute any of the funds acquired from the government by the national body, the claim may be acceptable.
But clearly, as a national organization, the American Red Cross is heavily reliant on government referrals, funds, and even facilities. Their national headquarters in Washington are leased from the federal government for $1 for 99 years. At the price of real estate in Washington DC, I think that also counts as government support.
And I REALLY want to see the detail breakout of the 2.3 billion dollars that includes government contracts and fees.
In summary, No Diane. There IS a Santa Claus. And he is U.S. government
I tried to convince the ARC that blood drives would be helped if they could arrange a tax credit of the retail value of donated blood. I got a snarky response that they never pay for blood. When I responded that one can hardly trade a tax credit for a bottle of booze I got nada.
Frankly I believe organ donors should get a tax credit, too. My brother died waiting for a kidney.
And I believe th government should take back the Red Cross and bid out the management.
Seems to me that neither J&J nor the ARC have a leg to stand upon. See link:
http://www.infoplease.com/ce6/history/A0860655.html#axzz0ystzcqXK
If this article is to be credited, a red cruciform symbol was adopted by the international organization circa 1864, and was designed to be the Swiss flag with the colours reversed.
That means both J&J and the ARC (insofar as it claims any exclusive use of the symbol) are in violation -spiritual if not legal- of a prior copyright and trademark.
BTW, Millie Woods is correct on the foul record of all blood-product providers in respect of haemophiliacs. It wasn’t just Canada’s groups that exhibited a depraved indifference or malice; between circa 1980 and 1995, generations of sufferers were also quietly wiped out in France and Japan. Holocaust is not an excessive label.
Actually, the idea of exempting income for organ or blood-products donations, prohibiting/discouraging cash payments, is a good idea. One would first need to have an income for anything beyond a psychic (eleemosynary) benefit.