August 10th, 2007

Just to be Clear

Keeping employees informed on the status of events impacting the company is critical, particularly in a large, decentralized organization like Johnson & Johnson. In an email to employees today, CEO Bill Weldon addressed some aspects of the lawsuit filed against the American Red Cross and some of its licensees. He said he was providing perspective and background information that might be helpful to employees in their personal and professional conversations about the topic. Rather than repeating what he said, I’ll simply extract from his letter below:

“…We have generously supported the American Red Cross and its charitable endeavors and will continue to do so. However, we ultimately felt we had no other choice but to seek protection of our trademark rights to the Red Cross symbol through our justice system. For many months, we tried unsuccessfully to resolve the differences on an amicable basis and even requested that the parties enter into mediation to achieve this objective, but the American Red Cross refused to do so.

“Sometimes it is important to keep things simple in discussion. Here are some simple facts about the civil complaint Johnson & Johnson filed against the American Red Cross:

“1) We are not asking the American Red Cross to stop using the Red Cross symbol for its legitimate purposes.

“2) We are asking that the American Red Cross stop licensing the Red Cross symbol to for-profit companies that use the trademark to compete with Johnson & Johnson products that have had exclusive rights to use the Red Cross symbol for over 100 years.

“3) We continue our long-standing support for the primary mission of the American Red Cross in humanitarian relief.

“4) We expect to contribute or direct monetary gains from the lawsuit itself to philanthropic purposes. Our focus has always been on the protection of our intellectual property.

“5) If we did not pursue this action, we would jeopardize rights to one of Johnson & Johnson’s longest-lived, most trusted trademarks and establish a dangerous precedent.”

30 Responses to “Just to be Clear”

  1. Toby says

    Marcus – Don’t envy your job on turning the tide on this one. However, aren’t you glad that JNJ launched this blog that provides the opportunity to tell your story your way?

  2. Stephen says

    In light of Johnson & Johnson’s decision to sue the American Red Cross, I will boycott its products and actively encourage my family and friends to do the same. The fact that a $53.3 billion company would target one of the nation’s premier humanitarian organizations in an attempt to make more money is appalling. It is my hope that the Red Cross will prevail in this legal dispute and that Johnson and Johnson’s profits will suffer as a result of this public relations debacle. Johnson and Johnson’s actions in filing this “civil complaint” expose the depth of corporate greed in America today.

  3. Julie says

    I am really disappointed to read about this news and your PR defense. Quite frankly while it is your right to protect any trademark I don’t believe that JNJ couldn’t find any other way to settle this with the ARC. All that this is really about is money. As a PR professional working in the pharmaceutical industry and a former media spokesperson for the ARC in NY neither of your organizations need this PR headache. There is so much more you all could be doing with your time and money – like saving lives as Hurricanes are approaching our the US and other coutnries as we speak and making life-saving products. Get real. I will be watching to see if your CEO actually donates any money to charity from this case – how about giving it back to the ARC.

  4. Jim says

    Unfortunately this is a sticky situation for J&J.

    Being a small business owner that creates copyrighted works I have come to understand some of the basics of trademark and copyright protection. With US law it is your burden as the holder of the trademark to actively enforce it and send cease-and-desist letters to ANYONE who infringes including some kid who made a funny video about your product and posted it on the internet.

    Also, JNJ would have to worry about “likelihood of confusion” of customers who see two competing products on the shelf with the same logo. You can read more here: http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

    ***(If anyone with more knowledge about these laws reads my comments, please make sure I did not speak incorrectly)

    No one likes to see Big Business go after a not-for-profit like Red Cross, but please take a minute to understand trademark law and why they have to resolve this.

  5. 1techsan says

    Your actions and flippant explanations speak to the greed of corporate America. Your civil actions in this case may cause people facing disasters not to have resources available from the AMerican Red Cross because they are being spent fighting your company in court. It must make you proud to have the victim of a significant tragedy to be harmed by your companies greed.

    As a health care professional I will no longer use J&J products, I will inform my clients, my students, and my friends and colleagues of your materialistic “to hell with everyone else’s attitudes.” Hopefully, the consumer backlash will make a significant dent in the J&J bottom line.

  6. Stephen says

    Obviously the issue has not been an issue for over a hundred years, suddenly it is and probably only because someone in the J&J legal department said, “Hey we can pilfer some money here.”

    Your tired arguments aside, may be Johnson and Johnson should come up with a more creative trademark other than a “RED CROSS”. Idiots.

  7. James says

    Trademarks are meant to prevent deceptive commerce. They were never meant to protect business, but rather to protect consumers by keeping them from buying something other that what they THINK they’re buying. For obvious reasons, however, they became commercially advantageous.

    This means, Jim, that a large part of your comment is untrue. Non-commercial uses of trademarks, for example, are NEVER infringing, which is why bloggers discussing this issue can put little red crosses on their posts and use trademarked phrases like American Red Cross and Johnson & Johnson (or, for that matter, put little red crosses on generic bandages to pass out freely at a private birthday party). A kid who makes a funny video about your product and posts in on the internet will very likely be protected even if it IS posted in a commercial effort on grounds that it is parody. Even your competitors can use YOUR trademarks in THEIR advertising, provided they clearly differentiate their product from yours (Pepsi’s old Pepsi Challenge ads, which used Coca-Cola trademarks, are probably the most famous example of this). You can read more about this sort of thing at http://www.openp2p.com/pub/a/p2p/2003/08/14/trademarks.html if you are so inclined.

    Getting back to the subject at hand, my personal objection to the J&J suit against the American Red Cross is that I find it very difficult to believe that the ARC is attempting to deceive consumers. Rather, it is licensing its trademark for purposes of raising funds to fuel its humanitarian efforts. I don’t know the basis of the ARC’s defense in this case, but it wouldn’t surprise me if it is based on fair or nominative use (http://www.chillingeffects.org/trademark/faq.cgi#QID486). I don’t know whether the courts will buy it, but I do know that I have stopped buying J&J products as a result of this suit because I feel it is an abuse of trademark law (in spirit, if not in legal fact). No consumers are being deceived here, and the ARC is only using its own trademark in a good-faith fund-raising effort. I simply fail to see where consumer confusion may result, and as long as consumers are safe the law has done its job. And that’s where it should end — J&J’s bottom line is a matter of management, not public policy.

  8. Richard Barnett says

    Get real. This is about corporate greed, pure and simple. The Red Cross symbol has become fairly generic over the years…in fact, I really doubt J&J was the first to use it. Since you haven’t seen fit to go after anyone else’s use of the emblem (worldwide…), I don’t envy your position in court. Any sane, reasonable person would not be confused by these logos on products, and J&J is going to take a TERRIBLE beating in the “court of public opinion”. I know I have stopped buying your products after years of brand loyalty, and I know many others are doing the same thing. Do the right thing and drop this now…

  9. TheMaskedAvenger says

    When I see a red cross I do not think of Johnson and Johnson, I think of the American Red Cross, of ambulances, hospitals, MASH, etc. It is a trademark that has already been lost to public perception and popular culture. If I were you I would drop the suit just to avoid the public relations black eye.

  10. Michael says

    I understand the trickiness regarding protection of trademark symbols, but something like a simple cross, a symbol of several societies over much of human history, is one of those instances J&J should just get over themselves about.

    How about instead of making trial lawyers richer and not really settling anything, maybe J&J should just come up with a new logo.

    Personally, I never have associated a cross with J&J, just rather the spelled out script like above.

    Or maybe the Orthodox churches of Greece and Russia should sue J&J because I’m pretty sure they’ve been using a similar cross hundreds of years before J&J started using it.

    Yet another example of frivolousness in our judicial system…

  11. Steph says

    Jim, I do understand trademark law. This case is not black & white. It’s muddied by prior use of the mark before the J&J registration (internationally and in the US), the existence of government charters protecting the use of the mark by the ARC, Geneva conventions which protect the use of the mark internationally and numerous other issues…
    Commercial rights to the mark are definitely not cut and dried.
    I’m confident the courts will agree that fundraising via licensing of the ARC mark is consistent with their charter, and the likelihood of confusion between the J&J use of a red cross symbol, and the ARC logo (which includes the use of the typemark) is minimal.
    I can’t help but think the trademark registration by J&J was opportunistic in the first place. The Red Cross symbol was actively being used by the International Red Cross more than 6 years before the registration of the trademark by your company.
    For a very thorough refutation of this incredibly stupid, short-sighted and damaging legal challenge, the ARC have published a number of points of contention to J&Js case. See: http://www.redcross.org/pressrelease/0,1077,0_314_6910,00.html

    I was alerted to this blog from a corporate boiler-plate reply to an email I posted to J&J stating my opinion that this entire action is an exercise in corporate lunacy and can only be a hugely negative PR disaster for J&J. Hopefully it will lead to an overwhelming declaration of public support for the American Red Cross, and a subsequent increase in donations to support the humanitarian activities of the International Red Cross.

  12. Scott Johnson says

    Your misleading wording is, in a word, interesting. The American Red Cross existed and used the red cross as its symbol long before your company trademarked it, but you’ve sidestepped that by saying that your use predates the American Red Cross’ charter. Cute, but irrelevant.

  13. Marc says

    Jim,

    Thanks for sending on your link to the Harvard Law School site. It is certainly worth reading — though I’m not a lawyer, I thought it provided a decent primer on trademark law.

    Marc

  14. Marc says

    Michael,

    Just wanted to reiterate that this suit isn’t about preventing the American Red Cross from using the red cross symbol for its legitimate purposes. It’s just that we are asking them to stop licensing this symbol to for-profit companies that use the trademark to compete with our products.

    Marc

  15. Ray says

    What’s going on in the J&J legal department? This is a junk law suit. The person who initiated and decided to filed against ARC should be fire!!! It just doesn’t make any sense!!!

  16. marcus aurelius says

    An earlier commentor stated:

    “No one likes to see Big Business go after a not-for-profit like Red Cross…..”

    Especially ironic since J & J thru their political division, the Robert Wood Johnson Foundation (RWJF), usually provides funding to non-profit organizations rather than suing them….of course that funding is to support rent seeking legislation which benefits J&J / RWJF:

    http://cleanairquality.blogspot.com/2006/10/how-drug-industry-uses-non-profits-to.html

  17. TheMaskedAvenger says

    Marc,

    You don’t read any one else’s opinions or comments but just say the same thing over and over again. In my opinion the ARC has much more right to the symbol that the greedy bloodsuckers at J&J, I hope they counter sue or use congressional law to take the symbol away from you permanently.

  18. 1techsan says

    The sad thing is that the company guys like poor Marc are so brainwashed they are unable to do anything but dance to the company music, they are unable to think for themselves.

  19. Marc says

    Marcus Aurelius,

    As I think I’ve pointed out before, the Johnson & Johnson doesn’t have a role in the management of RWJF, and RWJF doesn’t have a role in the management of Johnson & Johnson.

    Just thought I’d point that out..

    Marc

  20. Marc says

    Masked Avenger,

    Well, I do try to read as many blogs as possible, and I do hope to comment more frequently.

    In my posts and comments, I’ve tried to explain what this case involves, and I think we are just going to have to agree to disagree — we are entitled to our opinion, just as you have a right to yours.

    I’d also just like to remind you that courtesy and politeness is not optional on this blog.

    Marc

  21. Marc says

    1techsan,

    If thinking for myself amounts to agreeing with you, well, I have got too much of my mind to do that…

    Marc

  22. Stephen says

    I agree with what others are saying, this is about a corporate giant trying to bully a nonprofit – well shame on you. I have read the other side of the story that J&J ignores. Oh, and I posted this on my website so you could get more feedback. I posted both sides – so far in the court of public opinion you are losing – big time.

  23. Marc says

    Stephen,

    I imagine you are agreeing with others, namely 1Techsan and the Masked Avenger — as they are the same aspects of the same personality. : ) Therefore, I don’t see why I should let you abuse this space by being disingenous and posting under multiple names.

  24. Perry de Havilland says

    You can always tell when someone has no coherent argument to make because they make an ad hominem remark like this one by 1techsan (August 17th, 2007 at 4:39 pm):

    “The sad thing is that the company guys like poor Marc are so brainwashed they are unable to do anything but dance to the company music, they are unable to think for themselves.”

    But of course what 1techsan really means is that anyone who disagrees with him (and his various mutually reinforcing pseudonyms) is “brainwashed”, i.e. he is pathologizing disagreement with his views. Nice. Let me guess that you see yourself on the political far left, no? They do that a lot in China I hear.

    Heaven forbid someone might actually rationally and calmly think 1techsan (and the ARC for that matter) just happens to be full of… sorry… wrong, and that J&J is the injured party here. Can you not *conceive* that might actually be what some really do think? Does that notion, that possibility that no brainwashing is required, even register? Just crank up Google and take a look at what many people are saying on blogs all over the place: there are a lot of folks out there who are not on the J&J payroll who are taking the view that it is the ARC who are wrong.

    Tell me, is there ANYTHING the ARC could do to J&J that would not get the same dreary proforma anti-biz response regardless? Somehow I doubt it.

    The tediously predictable reactions of so many commenters with “oh it is just mean old big business” suggests that it is not Marc who is brainwashed (i.e. acting out unthinking conditioned responses). Try to make a rational *argument* why J&J should not defend their trademark if you like but please, do not murder pixels declaiming about ‘greed’ like some like overwrought teenager.

    For once a big company is talking about a PR issue in human words rather than formulaic PR-speak yet it seems many of J&J’s critics are still spouting their own utterly formulaic anti-biz PR speak. Sorry guys but the ‘antis’ are getting owned on this one.

  25. Bugsy says

    just because people believe different than the J&J scam job, you ridicule them. Obviously the problem is not with Stephen but with you.

  26. marcus aurelius says

    Marcus Aurelius,

    As I think I’ve pointed out before, the Johnson & Johnson doesn’t have a role in the management of RWJF, and RWJF doesn’t have a role in the management of Johnson & Johnson. -Marc (moderator)

    That’s right, I forgot it’s just a coincidence that nearly half of RWJF board members are former J & J board members and or executives……or that RWJF was founded by J & J’s founder….or that RWJF is the largest single shareholder of J & J stock……other than these symbiotic relationships…..there is no connection……keep repeating that to yourself.

  27. C K Reid says

    As both a JNJ stockholder and a Red Cross volunteer I am interested in this situation. The money that the Red Cross gets from the licences for these products is so tiny compared to JNJ profits that the company comes off looking very greedy and as a bully. They should try harder to end this suit now to avoid losing their good reputation.

    This was a bad idea that management should have never let get this far.

  28. David Hartman says

    There are a few distinctions I haven’t seen posted here which are problably worth mentioning. The ARC (American Red Cross) and the IRCRC (International Red Cross + Red Crescent) function as two different organizations. And arguably each has different missions. The mission of the ARC, specifically in New York, is to emergency preparedness of the general public, and responding to disasters, including fires and floods.

    They offer a support role for people displaced by natural and other disasters not offered by any government organization, and they are first responders in the same way as the police and fire department.

    They also offer training and preparedness classes to the general public, and create pamphlets and other imformation to educated people, some of which is free of charge. They also package, create and sell preparedness kits to the general public.

    I see no reason why the American Red Cross should not partner with another brand to develop products that are in line with its mission to prepare people for emergencies, or help them respond to emergencies.

    I do not see why a red cross next to the words “Johnson and Johnson” on a package of band aids is a trademark conflict with a red cross next to the words “American Red Cross.” If anything is seems like J+J has tried to distinguish its red cross by using the words “FIRST AID.”

    How can they possibly have a basis for an intellectual property lawsuit?

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