In 1895, as a contingency plan, Robert Wood Johnson the first and Fred Kilmer had started discussions with Clara Barton about the use of the Red Cross symbol. The Johnson brothers asserted that they had established the right to use the trademark they had been using for eight years. As a result, after a number of meetings, an agreement was signed between Johnson & Johnson and the American National Red Cross on January 29, 1895 that recognized Johnson & Johnson’s rights. It stated “It is agreed that the said Johnson & Johnson are now and for a long time past have been entitled at common law and otherwise to the exclusive use of the symbol of a red cross as a trade-mark.” The document was signed by R. W. Johnson and Clara Barton. Finally, a decade after the agreement, President Theodore Roosevelt signed legislation protecting the American Red Cross’s use of the red cross mark, but at the same time reserving the rights of Johnson & Johnson to use it too.
For over a century, the American Red Cross (ARC) and Johnson & Johnson (J&J) have existed in harmony, with ARC using the trademark in conjunction with relief efforts and J&J using the trademark in association goods such as first aid kits. Recently however, ARC has been licensing third parties to use the red cross trademark in association with things like surgical gloves, combs and toothbrushes.
In response, J&J sued ARC for trademark infringement, issuing this press release:
Johnson & Johnson began using the Red Cross design and “Red Cross” word trademarks in 1887, predating the formation of the American Red Cross. The Company has had exclusive rights to use the Red Cross trademark on commercial products within its longstanding product categories for over 100 years. Since its creation, the American Red Cross has at all times possessed only the rights to use the Red Cross trademark in connection with its non-profit relief services.
For the past several months, Johnson & Johnson has attempted to resolve this issue through cooperation and discussion with the ARC, and recently offered mediation, to no avail. The Company was left with no choice but to seek protection of our trademark rights through the courts.
So who is the bad guy here? Well, you could view it as a multi-national corporation picking on a charity. Or, you could look at it as a charity’s outright theft of property from one of its biggest donors. If ARC employees had walked into a store and stole thousands of dollars worth of J&J products, would it be any less of a crime simply because ARC is a charity?
Just because intellectual property is intellectual, does not mean it is not property. Even if J&J had wanted to overlook the theft, J&J’s refusal to pursue ARC for the misappropriation of J&J’s intellectual property, could cause the red cross trademark to become generic. This would strip J&J of over a century of good will in one of the world’s most famous trademarks.
While some pundits see this as a publicity war, I see it as nothing more than an attempt by ARC to extort property from J&J under the threat of bad press. The only bad guy here is the American Red Cross. Time for them to admit they are wrong and stop taking things that do not belong to them.