International Implications Of Red Cross Trademark Fight Unclear

By Catherine Saez
Months after health products manufacturer Johnson & Johnson filed a civil complaint against the American Red Cross and its commercial licensees to stop using the symbol of a red cross, the public interest it generated seems to have all but subsided. However, questions about the possible consequences of this lawsuit at the international level remain unanswered.

After roughly 100 years of sharing the symbol, the two entities are now fighting over it. The lawsuit filed by US-based Johnson & Johnson (J&J) against the American Red Cross (ARC) and four of its licensing partners on 8 August focused mainly on preventing the ARC and its licensing partners from using the red cross design on commercial products such as first aid kits to prevent unfair competition. The American Red Cross has licensed sale of its kits in large-scale retailers such as Wal-Mart, Target and major drug stores.

In the lawsuit, J&J alleges that it began using the red cross in 1887, predating the formal recognition of the American Red Cross in 1900. But the ARC says it began using the red cross emblem at its foundation in 1881, six years before J&J.

In its first complaint, J&J demanded the seizure and destruction of all commercial items. But according to the ARC, on 6 September 2007, J&J filed an amended complaint cancelling that demand.

On 20 September, the ARC launched a legal response to J&J lawsuit, filing counterclaims that accuse the for-profit pharmaceutical company of improperly using the red cross emblem.

The ARC asserts that although the US Congress “grandfathered” J&J’s use of the red cross symbol – placing very specific, narrow restrictions on what the company could do – J&J is today using the red cross emblem beyond their “grandfathered” rights.

The ARC also claims that its first-aid and preparedness kits are designed to answer a public safety issue documented by research that show that “only 7 percent of Americans have taken the necessary steps to prepare for disasters, but 82 percent would get prepared if it was easier to do so.”

Could Fight Spread Beyond US Borders?

The 186 Red Cross national societies are independent and operate under national laws. However, in a globalised world, the question of J&J claiming the “exclusive use of the symbol of a red cross as a trademark” conceivably could apply elsewhere should J&J use the red cross on products sold outside of the United States. Company spokesperson Marc Monseau downplayed this possibility, saying, “This is a US legal matter concerning the American Red Cross.”

However, it is unclear whether J&J or any other entity with rights over the symbol could duplicate the claim in other countries. The United Kingdom Red Cross and the Australian Red Cross, for instance, appear to be commercialising first aid kits using the symbol.

According to the International Committee of the Red Cross, which addresses international humanitarian laws, the 1949 Geneva Convention protects the red cross emblem. Article 53 of the convention states: “The use by individuals, societies, firms or companies either public or private, other than those entitled thereto under the present convention, of the emblem or the designation ‘Red Cross’ or ‘Geneva Cross’ or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times.”

In “nearly all countries” the red cross emblem is protected by law and is the property of the governments, which then permit the use of the emblem by the Red Cross, according to the International Federation of Red Cross and Red Crescent (IFRC) in Geneva. According to the IFRC, there is no example of permission for private companies to use the emblem. In the United States, however the case is different; the protection is made by trademark. It is possible it could be interpreted that J&J could not use the red cross emblem anywhere other than the US market.

On 5 November, a federal judge dismissed one of the eight claims of the Johnson & Johnson lawsuit, according to an ARC press release.

It remains to be seen whether the fight will spread somehow outside US borders and invite other complaints over the use the red cross emblem.

Catherine Saez may be reached at csaez@ip-watch.ch.