Johnson & Johnson Loses Major Trademark Lawsuit 176
Dekortage writes "As previously discussed here, the health-products giant Johnson & Johnson sued the American Red Cross over use of the ubiquitous 'red cross' logo. J&J has now lost. The presiding judge said Johnson & Johnson's claim against the organization was doubtful because the manufacturer entered into a brand-sharing promotional agreement with the American Red Cross in 1986 — not to mention that the two organizations agreed to share the logo way back in 1895. Sounds like J&J may need to crack open some Tylenol and Band-Aids."
Re:Brand recognition (Score:5, Informative)
Re:Brand recognition (Score:5, Informative)
This lawsuit seems more complex (Score:5, Informative)
I'm presuming the court made the appropriate decision here, but it sounds as if the story's more complicated than a bunch of crazy lawyers filing a ridiculous lawsuit. The problem that Johnson & Johnson had was that the Red Cross had (apparently) started to commercially license its symbol to businesses that were probably in direct competition with J&J, and this would have been unforseen in the past when J&J probably saw and treated the Red Cross as a completely non-commercial organisation, with largely uncommercial products, and where any place it used the logo were at best for fundraising.
If it suddenly starts licensing its logo, though, then other companies can start using it to promote their own commercial products in the same domain as Johnson & Johnson in a way that could potentially confuse customers. In other words, any business that wants to start leeching from Johnson & Johnson's pre-existing brand recognition and loyalty might be able to throw a comparably cheap donation towards the Red Cross as a licensing fee, without having to negotiate at all with J&J, and make their commercial packaging potentially confusing with Johnson & Johnson's. This could be a real problem for J&J in the case of competitors who want to get their products shelved right next to it in supermarkets, for instance. Apart from the licensing fee, the Red Cross isn't even benefiting anywhere near as much as J&J might be losing.
I think the lawyers probably wanted to prevent the Red Cross from being able to give other businesses what could be a huge commercial advantage and steal its own good will, when under normal circumstances this would all be prevented by trademark law. Sure, J&J has probably benefited a lot from having a logo that looks like the Red Cross, but it sounds as if they've at least had it for as long as the Red Cross has.
Re:So if they had won... (Score:4, Informative)
This is, of course, assuming you're being facetious, and ignoring the fact that those organizations do exist. Albeit only because other people fail to understand where the cross comes from, and themselves took it religiously.
We all know what a "Johnson" is... (Score:3, Informative)
Every once in a while, the douchebags who spend their lives making the rest of us miserable get a well-deserved kick in the crotch. This is one of those times.
The only other occasion I can think of off the top of my head where something like this happened is when the World Wrestling Federation tried to lawyer the (much older) World Wildlife Fund out of its right to use "WWF". What is it they call the giant men who grope each other these days? I can't recall, but it certainly doesn't have an "F" at the end of it.
The perils of generic trademarks (Score:2, Informative)
IANALB it seems obvious that a red cross is too generic a mark for trademark purposes. This is an old symbol [seiyaku.com] and is a poor choice for use as a trademark for commercial purposes, anyway. Apparently, it took an act of congress [cornell.edu]to make this "red cross" a mark protected under the law.
Now as a consumer of band-aids I have a confession to make: I think I've always subliminally associated the product with the Red Cross. So from my viewpoint, it could be argued that it is J&J that has been infringing on the American Red Cross's mark.
-- IANALB: IANAL but..
Re:So, what did the Swiss have to say about this? (Score:4, Informative)
Re:So if they had won... (Score:5, Informative)
Re:So if they had won... (Score:2, Informative)
That and to maintain a trademark you have to aggressively defend it, even if you don't think its a case you can win.
Re:Damn Johnson and Johnson to Hell! (Score:5, Informative)
Ah yes... the kneejerk "the $BIG_CORP must be the one at fault" reaction. Meanwhile, the $CHARITY who is seeking (against the agreement they made with $BIG_CORP) to commercialize the "already prolific sign of medical care and hope" goes scot free...
Or, to put it in much simpler terms - you pretty much have the situation entirely reversed and then misunderstood. J&J did not try to take anything away from the Red Cross - they tried to prevent the Red Cross from using the trademark in question in a commercial fashion rather than a charity fashion.
The bad guys in this situation, the guys crossing the line, the guys violating their agreements... is the Red Cross.
Re:We all know what a "Johnson" is... (Score:2, Informative)
the World Wildlife Federation sued the World Wrestling Federation not the other way around, This however, is shockingly on topic.
The WWF (as in wrestling) was actually allowed to use the mark for certain uses, they got in trouble when they attached it to merchandise (commercial exploitation) Heres a link to the contract between the two WWF's http://contracts.corporate.findlaw.com/agreements/wwf/worldwildlife.1997.01.20.html [findlaw.com] WARNING: actual contract text, lots of legalese
This is actually the reverse problem, the charity is now exploiting the mark J&J own, yes its J&J's since 1887. It took an act of congress to let the ARC use the emblem. Despite this both companies have a history of cooperating, even to the point of sending legal briefs together to third parties using the mark, J&J asserting their trade mark and the ARC quoting 18 U.S.C. 706, which prohibited use of "the emblem of the Greek red cross on a white ground, or any sign or insignia made or colored in imitation thereof " by anyone other than "the American National Red Cross and its duly authorized employees and agents and the sanitary and hospital authorities of the armed forces of the United States." J&J retained their trademark thanks to a grandfather clause; "This section shall not make unlawful the use of any such emblem, sign, insignia or words which was lawful on the date of enactment of this title."
Now the ARC is letting other commercial entities who are in direct competition with J&J use the mark on their own product, and are excusing it by saying that they are raising money for a charity. The really funny part is that its not just a trademark case the same law that protects the red cross, 18 U.S.C. 706, prohibits the use of the mark by anyone else, the red cross doesn't have the legal power to licence that mark to anyone.
I can feel the karma burn from siding with the big bad corporation here but I gotta say, if I was in J&J's position I'd have sued too.
Re:We all know what a "Johnson" is... (Score:3, Informative)
The World Wildlife Fund sat around, saying nothing for years and years as the wrestling organization was prospering. Then, when the wrestling organization was running into it's first financial hurdles, they pounced and dragged them into court in Europe-- knowing such BS wouldn't work in US courts at the time.
Not wanting to bother with another legal battle, the wrestling organization simply changed their name and carried on.
It wasn't a good thing in my opinion. It was pretty bad. This leaves the door open for any corporation to sue the pants off another over three letter acronyms, even in completely unrelated types of businesses.
Also, I won't be contributing money anytime soon to a supposedly charitable organization who spends the money given to them on "protecting trademarks" when the differences in the businesses is completely obvious.
Re:We all know what a "Johnson" is... (Score:5, Informative)
Um, no, and you're really, really off base here.
They had an agreement that allowed the wrestling-WWF to use the "WWF" so long as they didn't step on the wildlife-WWF's toes in any way. Then after a while the wrestling-WWF started doing stuff that the wildlife-WWF didn't like as they got more "racy" and, well, basically turned into "let's see how far we can go!" type stuff (including, and I'm not kidding, an 80 year old former female wrestler giving birth to an adult human hand). The wildlife-WWF didn't want to be associated with that sort of junk(understandable at this point), and sued to have them stop using "WWF". At no point did the wrestling-WWF initiate any sort of lawyering against the wildlife-WWF. Now they call themselves "World Wrestling Entertainment." I mean, hell -- would YOU want to be associated with them?
The "WWE" has enough facts that make them look like a bunch of creeps that there's no need to spread falsehoods (even if it's not intentional) about them. It's basically Jackass in tights without the funny. I mean, really -- adult human hand birthing? And that's just ONE of the absurd things I can think of off the top of my head... and those are limited to just the few horrifically stupid and atrocious things I know of that they did. Fortunately, the stupid epidemic is wearing off and their ratings have been in decline. Unfortunately, their viewership seems to be watching American Idol instead...
Re:Unless you use our likeness... we support you. (Score:2, Informative)
Re:When you're hiring lawyers... (Score:5, Informative)
Which might have something to do with the reason J&J lost. The Red Cross actually *uses* this logo extensively. J&J pretty much has a different logo or appearance for each and every product they sell. Which product do they use the red cross logo for? Whatever it is, I don't believe I've ever seen it, or even an advertisement for it.
it sure is a religious symbol (Score:5, Informative)
Are you joking? Of course, it does. The cross in the Swiss flag represents the Christian cross, and the people who picked it in 1863 were fully aware of that. The fact that the Red Cross not only added the Red Crescent as a symbol, but also in 2007 added the non-religions Red Crystal, shows that this is widely recognized to this day.
Personally, I wish they would make the Red Crystal standard and get rid of the two other symbols; retaining religious symbols in aid organizations perpetuates the misconception that religions have something to do with altruism.
Re:Brand recognition (Score:5, Informative)
> think of emergency relief, supplies, etc.
That's what I thought of as a kid. Now, I know the history previous to that. Now, I think of the Crusades and the terrible things done in the name of Christianity during them. That's where the red cross on a white background originated.
The Knights Templar (Temple Mount Knights, who took a vow of poverty (communal property, as the term meant at that time) and allegiance to the order, who originally protected the pilgrims during a period when most other knights were ignoring them because there wasn't profit in their protection, who were a time the most powerful Military Christian order after so many donated so much in turn, who set up the first European and Crusader banking system, had as their naval flag the original white skull and crossbones on a black background later associated with pirates, who traded with the Muslims and introduced gauze (from Gaza, the city), muslin (from Muslim), and candy (from al-kandiq) these were one of the orders that flew the red cros on a white background, the original symbol of the crusades.
Similarly with the Knights Hospitaller, whose order founded and staffed the medical "hospitals" the pilgrims and Crusaders used. This is actually the origin of both the word "hospital" and the association of the red cross with medicine. Of course, while they were a welcome sight to many a wounded Christian Crusader or pilgrim, obviously, the Muslims had a rather different viewpoint! No WONDER they couldn't tolerate the Red Cross as a medical symbol! To them it meant the rape and pillage, the savagery of the Crusades! So they went with the Red Crescent.
However, the Red Crescent is also a religious symbol, so today there's a third symbol coming into use, designed to be religiously neutral while still being unmistakable for anything else. It is often used in international contexts, particularly in the mid-east. This is the Red Crystal, a diamond shape.
So, ideally, the Red Crystal will eventually come to have the positive associations of the Red Cross and Red Crescent today, without the sectarian and cultural negatives. It's also worth noting that Cross, Crescent, and Crystal, all start with C, so the ARC (and other "Red Cross and Red Crescent" organizations worldwide) could adopt the Crystal without even changing initials.
Wikipedia is a place to start, anyway. There are links from there elsewhere, and I've included another informative link on the Knights Templar as well as a Google link, below.
Wikipedia Red Cross/Crescent/Crystal (and some others)
http://en.wikipedia.org/wiki/Red_Cross_(symbol) [wikipedia.org]
Wikipedia Knights Templar
http://en.wikipedia.org/wiki/Knights_Templar [wikipedia.org]
Wikipedia Knights Hospitaller
http://en.wikipedia.org/wiki/Knights_Hospitaller [wikipedia.org]
Also see Wikipedia Teutonic Knights
http://en.wikipedia.org/wiki/Teutonic_Knights [wikipedia.org]
A rather informative (altho obvious viewpoint taken) history of the Knights Templar (on first page of the below google)
http://www.electricscotland.com/HISTORY/kt1.htm [electricscotland.com]
Google on: "red cross" history crusades
http://www.google.com/search?q=%22red+cross%22+history+crusades [google.com]
Ill-informed comments (Score:4, Informative)
Apparently you have not bothered to check up on the actual story. A link was provided.
What angered J&J was the decision of the American Red Cross to license the symbol to other companies for use, in return for a small donation, on the packaging of toenail clippers and tooth brushes, among other things.
The judge apparently feels that this is a legitimate fund raising activity, which may very well be a valid point of law. He also feels that the 19th century agreement between J&J and the ARC governing the use of the red cross symbol is overridden by the charter Congress gave to the ARC, which gives it full control over the use the red cross symbol. That too, may be a legitimate point.
However, if the morals of "commercializing" the Red Cross are what you take issue with, rather than the legal framework, I don't see how J&J can be claimed to the be more at fault than the ARC itself.
For the debate is not about the ARC asking J&J to stop the commercial use of the red cross, something which they have done for over a century. (That, I think, would have been a sensible option.) And certainly not about J&J asking the ARC to stop the non-commercial use of the red cross; that would be patently absurd. It's about the ARC expanding the commercial use of the symbol. Surely, if its commercial use is a bad idea, then the ARC's decision is hardly wise? Toenail clippers are rarely a matter of life and death.
As for the sensitivity of J&J on the issue, I think their concern about trademark confusion is unrealistic but genuine. J&J's brand name is one of the most valuable on the market, and it is understandable that they are jealously protective of it. Whether this was a smart approach is something different.
Re:So, what did the Swiss have to say about this? (Score:3, Informative)
Re:When you're hiring lawyers... (Score:5, Informative)
It may be different in the US, where this case relates to.
Re:The Red Cross caused this problem (Score:4, Informative)
And now Red Cross is licensing the logo to other companies with similar deals, thus ending J&J exclusivity, but not diluting any trademarks J&J was owning. If the license deal didn't had any wording about exclusivity, then I don't see J&J having a case, and obviously the judges didn't see any case either.
Re:The Red Cross caused this problem (Score:5, Informative)
The Red Cross symbol can be used to indicate ICRC member organisation presence on battlefields, and it can be used as or in the organisational logo of any ICRC member organisation. The First Geneva Convention prohibits any other use of the Red Cross, worldwide.
The USA ratified this in 1882, meaning they agreed to enforce this restriction. However, they did not pass any actual law to prohibit it until 1900. In 1887, the US government approved Johnson & Johnson's trademark application to use the Red Cross on medical products, which broke their commitment to the First Geneva Convention!
The 1900 law prohibits what Johnson & Johnson did, but has a clause saying that any infringements prior to 1905 (i.e. Johnson & Johnson) will not be covered. They're still illegal internationally since 1864 and illegal in the USA since 1905.
Johnson & Johnson want to argue that they have special privileges to do something which both very profitable for them and is illegal for anyone else, namely usurping the symbol of Red Cross and milking its iconic status for purely profit-making enterprise. There is no agreement to take all profits made by branding J&J stuff with the Red Cross and hand them over to the ICRC or ARC.
I understand that J&J donated about $5 million last year to the Red Cross, but Johnson & Johnson made a profit last year of $38.27 billion. The Red Cross are not getting in their way of making a healthy profit. I don't have the figures on what percentage of that is directly attributable to selling on the back of the ICRC's global reputation, but it doesn't come with the ICRC's permission.
The American Red Cross was founded to provide free medical and humanitarian aid. Johnson & Johnson was founded solely to make money. The American Red Cross may be idiots and selling themselves out, but they're not the ones on shaky legal ground here. It only takes one stroke of the pen to remove the last line of 18 U.S.C. Â 706:
It bears pointing out that use of the logo was unlawful everywhere except the US on that date, and that the US is breaking its commitment to the First Geneva Convention, ratified prior to issuing the J&J trademark, by permitting said trademark.
If I were a lawmaker, I'd look into righting 100-year-old wrongs.
Re:When you're hiring lawyers... (Score:3, Informative)