Johnson & Johnson’s Trademark Battle with the American Red Cross Isn’t as Necessary as They Let On

This one has no upside for Johnson & Johnson.

A lawsuit against the American Red Cross, demands that the charitable organization cease and desist using the RED CROSS logo (ah, the irony) on any commercial products, and destroy any existing consumer items that use the logo.

Every time one of these Goliath vs. David stories comes up, some trademark legal expert steps forward to explain that the litigious company has no choice. The company has to ruthlessly pursue the family grocery store, home-based business, or in this case internationally respected non-profit organization that provides invaluable relief and coordination services during natural disasters and other crises.

Don’t blame the companies. Don’t blame the lawyers. Blame legal precedents, that threaten to invalidate the trademark if it isn’t vigorously defended against any use that could cause confusion by the public.

(The American credit union system lost the right to exclusive use of the "hands and globe" symbol used everywhere else in the world, because there was inconsistent use of the symbol.)

Most charitable organizations sell some logoed items, to bring in some cash and to increase brand awareness. I assume that Johnson & Johnson thinks the Red Cross should leave the visual symbol off any first aid kits it manages to sell, to protect J&J from trademark leakage.

This is a unique situation. The use of the red cross symbol in the United States by anyone other than J&J and the Red Cross is banned by federal statute. It’s hard to argue that the normal rules apply in this case. No lawyer will be able to argue that, because J&J let the Red Cross use the symbol for some commercial products, other companies can now use the symbol. It’s against the law. No floodgate will open to allow fast food chains, tampons and digital cameras to use the symbol without permission.

When you think of all the time and energy spent building the Red Cross’s international relief image over the years, you wonder at the gall of a company suggesting it’s threatened by the Red Cross’s actions. What about all the free positive enhancement to Johnson  & Johnson’s first aid commercial products, as a result of the potential confusion by consumers that J&J products were somehow endorsed by the Red Cross?

Isn’t that really the issue here? J&J has been benefiting by association from the volunteer work of hundreds of thousands of people around the world. Now, a small line of products are being sold to offset rising costs of running a relief agency, and the large corporation doesn’t want consumers "confused".

If anything, selling products that are explicitly endorsed by the Red Cross would provide less confusion to the public than the situation that has existed for decades. The use of the red cross by a private corporation leads to the incorrect assumption that J&J is somehow endorsed by the Red Cross.

 I’d like to think this lawsuit will boomerang on Johnson & Johnson, sullying its otherwise bland reputation, but that’s a long shot. By engaging in a PR battle, the Red Cross is no doubt hoping to shame Johnson & Johnson into easing up on their restrictions of the logo use. But the courts (or a pre-trial settlement) will resolve this situation eventually, and probably not in favor of unfettered fund-raising sales by the Red Cross.

Enough of my opinon. You be the judge of who’s right:

• J&J explains how it "was left with no choice but to seek protection of our trademark rights through the courts."
• The American Red Cross explains that it’s been selling first aid kits since 1903, with no objections from J&J, and they hope the company will drop its suit.

Tags: lawsuit, trademarks, legal, logos, american red cross, johnson&johnson, sales, retail, nonprofit, charity, fund-raising, dispute