August 9th, 2007

You’re Doing What?!

It was a busy night.

As a former journalist, I appreciated how undeniably juicy the story would be: Johnson & Johnson sues the American Red Cross and other parties over…. What?! … the use of the RED CROSS?!

It was almost too easy.

I also know that companies, like Johnson & Johnson, built on innovation and long-lived brands must resolutely defend their rights in these innovations, and in these brands.

One of Johnson & Johnson’s oldest trademarks is the Red Cross design. We began using the Red Cross design and “Red Cross” word trademarks in the United States in 1887, predating the chartering of the American Red Cross. The company has had exclusive rights to use the Red Cross trademark on products in certain categories for over 100 years. Since its creation, the American Red Cross has had the rights to use the Red Cross trademark in connection with its non-profit relief services.

Here’s a collage of our early products, including a couple using this trademark (click to enlarge):
red-cross-brand.jpg

If you’re interested in the history of Johnson & Johnson’s use of the Red Cross symbol, our history blog, kilmerhouse.com, will have some additional background and photos available later today. Interestingly, Clara Barton herself acknowledged and affirmed our rights to this exclusive use of the mark back in 1895.

It was disappointing to discover in recent months that the American Red Cross had started a campaign to license the trademark to several businesses for commercial purposes on all types of products being sold in many different retail and other commercial outlets. These products include baby mitts, nail clippers, combs, toothbrushes and humidifiers, as well as products that fall within Johnson & Johnson’s longstanding product categories. This action is in direct violation of a Federal statute protecting the mark as well as in violation of our longstanding trademark rights. Here’s a photo of some of these products (these particular ones are sold by Learning Curve International, Inc., under license from the American Red Cross, and manufactured by RC2. Click to enlarge):
arc-l-c.jpg

From my perspective, with responsibility for Public Affairs at Johnson & Johnson, I was delighted that we were attempting to resolve this issue through cooperation and discussion with the American Red Cross, an organization for which we have much respect (and to which, by the way, we contributed over $5 million cash and additional product and volunteer time over the past three years).

I was saddened, of course, to learn that, unlike in decades past, the American Red Cross was not working through this issue with us. In fact, they had rejected our offer to turn to third-party mediators to find an agreeable resolution, even after we had indicated our willingness to use a mediator recommended by the American Red Cross itself.

Johnson & Johnson was left with no choice but to seek protection of our trademark rights through the courts. A suit was filed yesterday morning in the United States District Court of the Southern District of New York.

As mentioned in an earlier post , Johnson & Johnson seldom comments on lawsuits in progress, preferring to leave to the courts the difficult job of assessing fact and interpreting law. Nonetheless, the American Red Cross issued a strongly worded press release Wednesday evening objecting to our action. We worked energetically Wednesday night to provide the media with fair balance on this story, including public issuance of our own statement concerning the suit and providing some night-time telephone interviews to better inform reporters.

Our small media relations group was reduced even further by summer vacations (including Marc Monseau, who does double duty as our chief resident blogger – that’s why I’m pinch-hitting this posting). Nonetheless, we felt most every journalist we engaged with (including bloggers) gave fair hearing to both sides of this matter.

So, I’ve now lived a classic corporate public affairs nightmare: announcing a lawsuit against the American Red Cross. Would I have chosen this exercise as a reputation-building opportunity for Johnson & Johnson? No, of course not.

But keep in mind that the law requires organizations and individuals to act against infringers of trademarks or they lose their rights. In other words, as much as we might respect the American Red Cross, if we didn’t act we could open the floodgates to all infringers of our trademark and could do nothing about it. So even though we remain committed to supporting the primary mission of the American Red Cross through our philanthropic efforts, we simply can’t give them a pass on violating our trademark rights.

The goal of our complaint is to restore the long-standing legal boundaries that have surrounded the use of the Red Cross trademark. We certainly regret that we had to take this step, but we are confident that the courts will protect our legitimate rights to this venerated trademark.

34 Responses to “You’re Doing What?!”

  1. Antoine Clarke says

    Techdirt, which is hardly a defender of corporate logos has a post about this story, subtitled “from the why-not-kick-some-babies-while-you’re-at-it dept.”

    Here’s the link:
    http://techdirt.com/articles/20070809/095011.shtml

    What I find interesting, is just how many of the comments are from people who are critical of the American Red Cross. I haven’t checked them so I want to be clear these are claims, not confirmed facts:
    The CEO allegedly gets $600,000 a year, the ARC allegedly got banned from collecting blood from US troops for allegedly selling the blood (donated freely) back to the military, the ARC allegedly screws every penny out local chapters to the point that some have no funds for local aid work, and most damming of all, the ARC’s alleged attacks on people selling products with a red cross on e-Bay.

    Despite Techdirt’s view that this issue is a PR disaster for J&J (which could well be the case), it is clear that a lot of people are open to the possibility that the charity is wrong. In fact if I were a trustee or board member at the ARC, I think I’d be drawing up some questions for the CEO’s next briefing meeting.

    BTW, as I emailed Marc yesterday, this is exactly the sort of story that allowing employees to blog will help a corporation.

    If you’re doing updates, you might want to link to the interesting takes you find on this issue, I assume the Technorati feed is useful. ;-)

    Finally, the idea of one commenter of donating the damages in the event of a legal victory (and claiming the tax) is probably a good one.

  2. Benito says

    Suing the Red Cross, what’s next ? suing Unicef ?
    Corporations have no shame, no ethic, no moral (besides the usual PR crap damage control)
    There are several companies suing the red cross as a logo, why not suing them also ? Any company that sells medical kits with a red cross should be sued, come J&J, you can do it !
    So I guess the welfare organization that is the Red Cross will have to use now a brown cross, or maybe a green cross ?
    Glad I gave up Acuvue lenses … J&J is a house full of greedy snakes.

  3. Benito says

    Better, I’m going to trademark the “white star” logo and I’m going to sue any manufacturer of american Flags for copyright infringement !
    Seriously, this week I’m trademarking all the other colors of the cross, so noone can use the cross logo anymore, I’ll even trademark the camouflage red cross color… So J&J is suing the red cross and if they win they ‘ll turn over the “price money” to a welfare organization ? 50 bucks that the money would be donated to a J&J friendly welfare organization :-) There’s no small profit ! :-)
    I worked in PR for 25 years for big corporations and I know them damn too well, they’ll go to ANY extend to make a few more bucks

  4. John Dodds says

    I agree with Antoine that your blogging this story is both refreshing and can do you no harm at all. One minor gripe, I’m guessing who Clara Barton is but a link to a bio would have been helpful and would have aided my comprehension.

  5. Mother Jones, RN says

    I’m not going to tell you that I understand all of the legal issues surrounding this case because I don’t, I’m a nurse, not a lawyer, but this lawsuit doesn’t put JNJ in a good light with people like my 80 year old mother. She called you a “bunch of puppy kickers.” Ouch!

    Just thought you’d like to know.

  6. Mark says

    Antoine,
    Here are the answers to your question:
    – The CEO of the American Red Cross is paid $416,010. This is 0.01% of expenses, according to Charity Navigator. Considering that the ARC is one of the largest charities in the US, combined with the need to find high-quality leadership, how else is the ARC meant to attract candidates without competitive pay? To give you an idea, America’s Second Harvest CEO is paid almost the same amount, but no one seems to be complaining as 2nd Harvest does not have as high a visibility.

    – All blood banks, including the American Association of Blood Banks and America’s Blood Centers (both non-Red Cross) charge hospitals and facilities money to sell blood. They have to! Testing blood for infectious disease, processing and storage are all very expensive. Donors aren’t paid money as doing so attracts high-risk groups such as IV drug users and sex workers. (Just look at China’s AIDS plasmapheresis scandal.)

    – ARC getting money from local chapters. Yes, each chapter pays the National Red Cross a “chapter assessment” each year. But it’s like being part of a franchise and you contribute to the greater whole. I would also point out that if donors donate to “Hurricane Katrina” on their check, the money does not go to the chapter but instead the Hurricane Katrina disaster relief fund. Donors who restrict their donations frequently don’t realize they may be hurting other, equally important, Red Cross causes.

    – Selling products on EBay. This is true, but that’s because sellers who want to donate to a certain charity have a special way of setting up the auction. You can’t just write “10% goes to the Red Cross” as part of a standard auction as there is no proof you will actually go through with it. Also, certain sellers sell restricted items like Disaster Worker vests which Ebay will remove.

    Antoine, if you have any additional points you would like me to look into, I’d be very happy to do so.

  7. Beretta says

    VERY interesting stuff. You’re right. The first reaction anyone has to this news is “They’re doin’ what?!” But after reading the background info and such, it is quite apparent that the ARC is in the wrong and absuing their charter. Good luck to you (you’re gonna need it).

  8. TD says

    Now let me see…nail clippers, baby mittens etc. sure don’t seem like “emergency preparedeness” essentials. J&J seems to have extended more than one olive branch to the ARC to resolve this matter. Once J&J wins this one it would be wise to revisit the before-law-suit donations, and after-law-suit donations to show that BIG Pharma can continue to be kind and caring.

  9. Marc says

    Benito,

    I just want to clarify a few points that you made in your two comments — in particular, we are not asking the American Red Cross to stop using the Red Cross symbol for its legitimate purposes.

    As pointed out in the latest post on JNJBTW, which includes some passages from a letter to employees from CEO Bill Weldon:

    “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.”

    And that:

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

  10. Rich B says

    Full support to J&J.

    As charities necessarily become more corporate, it’s only fair that they operate at the same professional standards as multinationals like J&J.

    I would urge anyone who has doubts to imagine (you may not need to) that you had built up a very successful business. Now consider that another organisation – charitable or otherwise – decided to sell almost identical products as your own, using your own trademarked logo. Add on the fact that you had donated time and money to that organisation and that they refused your many attempts at fair reconciliation. Could anyone honestly say that they would accept that?

    I would not.

  11. JD says

    I think it would be useful for Mr. Jordan to point out that trademark law is in place to protect CUSTOMERS primarily. We need to know whose products we are buying. There is no doubt in my mind that the ARC was counting on consumer confusion to capitalize on this trademark violation.

  12. Annabel says

    In the absence of being able to complain directly (since J&J’s “contact us” email service doesn’t work and you have no alternative email address – nice work for a multinational) I’ll leave a comment here.

    Nope, afraid not – no amount of telling us all how you’re so hard done by will work. You guys disgust me. I wouldn’t care, since this is essentially an exercise in shooting yourself in the foot (did noone at that meeting say – hey, will we actually make enough money out of this lawsuit to cover the massive boycott of our products we’re gonna face?) except that this lawsuit will distract the red cross from its vital humanitarian work. If your company is stupid enough to trademark a symbol that was given to an international humanitarian organisation in 1864 (13 years before you claimed it) then it’s your own tough luck. There is absolutely no justification you can come up with, so don’t bother and just look forward to the same backlash which Nestle ejoyed.

  13. John Cass says

    I am curious, have you polled your own employees about the case, and if so what do people think? If you have not asked formally, have you heard any disagreement within the company about the case? I suppose the same question should be put to the Red Cross.

  14. 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.

  15. Christoph Jaggi says

    1. The Red Cross emblem is a reversed Swiss flag and was adopted in 1863, well predating J&J’s first use in 1887.

    http://www.icrc.org/Web/Eng/siteeng0.nsf/html/emblem-history

    There are clear guidelines for the use of the emblem:

    http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5KZE8S

    2. The American Red Cross is a national Red Cross society and should not be confused with the international Red Cross. Therefore every mention of the American Red Cross should really refer to the American Red Cross and not the Red Cross as such. The two should not be used interchangeably.

    3. It is difficult to understand why J&J got a US trademark in the first place, as the emblem clearly predates J&J’s use.

    4. There is no way J&J applied for the trademark in good faith. They knew that this was the emblem of the Red Cross when they filed for the trademark. The rules for using that emblem were in place since the Red Cross adopted it back in 1863. J&J changed the rules that come with the emblem unilaterally by trademarking it, so they were in control of it in the US.

    5. The Red Cross symbol should not be used outside the area defined by the ICRC. Not by anybody. This includes J&J and the American Red Cross. The American Red Cross can license the use of its logo (emblem combined with the wording American Red Cross), but not the Red Cross emblem by itself.

    Both parties should take a step back and work towards a solution that ensures that the Red Cross emblem’s use is compliant with the rules set up for its use by the International Committe of the Red Cross (ICRC).

  16. Johnson & Johnson Sues the American Red Cross… at Animus Ex Machina says

    […] Over the use of the Red Cross. Adriana Lukas has a good commentary post about this public affairs fiasco. Of course, when you just read the title and not the articles themselves (or the press releases) the first thing that pops in to your head is: you’ve gotta be kidding me? But, if you take the time to read both posts, you’ll find out that the lawsuit itself, is not frivolous. […]

  17. Jim says

    Has JNJ used a red cross logo on anything recently? All the examples I’ve seen online this week confirm that my great grandmother probably bought a JNJ product with a red cross on it, but I’m 35 and I’ve never seen a JNJ product with red cross branding. Your argument seems to be that consumers will be confused if they see an American Red Cross logo on a product; however, as a consumer, the exact opposite would happen for me. If I saw a JNJ product with a red cross logo on it, I would wonder why you are stealing ARC’s logo.

  18. Scott Duffy says

    All of J&J’s public statements on this case claim you started using the logo “before the American Red Cross was chartered”. This is intentionally misleading.

    The Red Cross existed as an organization before it was formally chartered, and it’s use of the red cross symbol predates J&J’s registering it as a trademark.

    The RIGHT thing to do would be to give the Red Cross the trademark, not trying desperately to hang on to it. It’s not even anything consumers relate to J&J… I bet only 5% of consumers associate the red cross with J&J while 95% associate it with the Red Cross.

    Basically, J&J is greedy. And I will boycott purchasing any products of yours until this is settled in the Red Cross’ favor.

  19. Scott Duffy says

    Here’s the link.

    From http://www.icrc.org/web/eng/siteeng0.nsf/html/emblem-history
    “On 26 October 1863, the first International Conference was convened. It included delegates from 14 governments.

    In addition to adopting ten resolutions, which provided for the establishment of relief societies for wounded soldiers – the future Red Cross and, later, Red Crescent Societies – it also adopted the red cross on a white background as the uniform distinctive emblem.”

    Does Oct 26, 1863 predate J&J’s use of the symbol? Yes – by 24 years! So I don’t think your case is as solid as you think it is.

  20. JNJ BTW - Our People and Perspectives says

    […] this blog, we’ve tackled some difficult situations, like when the company was embroiled in a suit against the American Red Cross or when reporters have gotten their facts wrong or when our McNeil Consumer Healthcare business was […]

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