Branding Stupidity: J&J Suing The Red Cross
Via Slashdot: Johnson and Johnson is suing Red Cross over use of emblem. (It seems J&J began using the trademark in 1887, 6 years after the Red Cross was formed, but 13 years before the charitable organization was chartered by Congress. Lately the ARC has begun licensing the symbol to third parties to use on fund-raising products such as home emergency kits.)
Um, like it took them over a hundred years to notice? Really, J&J, do your attorneys just not have enough to do? Seems to me it’s good to have the reassuring “do-gooder” symbol all over the place. Maybe J&J could donate huge boxes of supplies to go in those home emergency kits, maybe have a discount coupon on the back of the band-aids box… But then I’m not the marketing poobah at J&J. (Thank the gods…there’s a reason I’m a proud Corporate America refugee.)
(J&J does claim it’s contributed $5 million over the past three years to the Red Cross and will continue to make donations.)
Update: I’m disagreeing (mostly) with Seth Godin on this one (What to do when you’re wrong.) Yes, The Red Cross stepped outside the box, but it never had to reach this level of ya-yaaing. And, the TRC has been using the symbol for a very, very long time.
Update #2: After Seth’s comment below - data/history geek that I am - I got even more curious - after all, this cross is pretty generic. Where else is it used? How is it used? Some interesting perspective from Canadian Red Cross:
“Despite the efforts of the Red Cross Movement over many years, the emblem has been improperly displayed by individuals, businesses and organizations in a vast range of uses from first aid suppliers through to children’s toys. Unfortunately, many people mistakenly assume that the Red Cross is in the “public domain” and can be used by anyone.”
Hmmm….
Quick! When you see the symbol, which do you think of first? J&J or The Red Cross? I also remember the opening scenes of Mash. Before today, I don’t know that I would ever think of J&J when seeing the symbol. What about you?
If you’d like to leave a comment, please do so. It may take a bit to show up since I hate making people type in little letters (I can’t read most of them myself) - so I moderate all comments. Feel free to disagree - debate is healthy. However, I’ve blacklisted the worst obscenities, including the “f” word, as part of the troll wall.
Tags: marketing, marketing troubleshooting, branding, branding, Johnson & Johnson, The Red Cross
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August 9th, 2007 at 10:32 am
Very simple situation. The copyright hoilder (J&J) sees a non-profit using its licensed sybbol for its own profit, in direct competitioin with for-profit itwems already being marketed by the symbol licensee (J&J), and decides to issue an effecrtive Cease and Desist order to enjoin the Not-for-Profit company from competing with the Fo-Profit company, AS IS ITS RIGHT! The Red Cross (the blood people) is clearly in the wrong, however unassuming, innocent, and positive its efforts and meaning in entering into this For-Profit (fund-raising) activity, and must stop. J&J is Right. Legally, ethically, and morally. Just becaise the Red Cross is so warm and cuddly doesn’t automatuically make its actions right. Try to setle out of court, though, with J&J; better ‘image’ for both sides!
August 9th, 2007 at 11:11 am
So, it took them over a hundred years to come to this legally, morally, and ethically right conclusion? “Using for profit” - well, TRC has been using that symbol for years to raise money. Did J&J want a cut of the fundraising? Further, J&J supposedly has had a long-time and friendly relationship with TRC.
And, The Red Cross is a lot more than The Blood People. Despite some of their well-publicized problems through the years, they show up when nobody else does. For example, in New Orleans after Katrina, while our government was still figuring out the PR spin and just couldn’t grasp out to drop water out of helicopters.
Thus, I stand by my stupidity statement. They’re churning up bad press, burning money and generally taking their eye off the marketing ball. This could have been a great J&J opportunity to do well by doing good.
(I’m also assuming, Larry, that typing isn’t your strong suit…even if you are an attorney.)
August 9th, 2007 at 7:07 pm
thanks for the thoughtful post, but your 100 year thing isn’t quite right. The stuff that J&J is pointing to is quite recent (last two years) and the real question is… when is it enough? Surgical gloves? What about bandages? At what point does their trademark go away?
My point is simple: if Red Cross wants to raise money, they should do it in a way that doesn’t hurt J&J. That should be pretty easy.
The Red Cross needs to work with corporations, right? This sends exactly the wrong message to future partners, imho.
August 9th, 2007 at 8:42 pm
Seth,
Thanks for adding to the conversation. While the licensing is recent - the use of the symbol isn’t. How long can you use a symbol before you (and the world) think of it as yours? Seems to me - if J&J is the friend of TRC it purports to be - this could have all been handled behind the scenes.
And, I’d have to be convinced that J&J is being “hurt” by somebody using what is basically a pretty generic symbol - a red cross, a cross that many people associate with - well - the Red Cross.
I popped over to the J&J web site - and they don’t even have a cross in their masthead. Granted, I didn’t read every document - but the only cross I could find was in two historic images in talking about their history. And, nope, I just pulled the Tylenol bottle out and no cross. Ditto my tube of Neosporin and bottle of Neutrogena wrinkle cream.
J&J did a terrific job managing the godawful Tylenol problem - seems they could have done a better job with TRC.
When all is said and done, I think both sides need to get down off their high horse and act like adults.
August 10th, 2007 at 1:35 am
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
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.
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.
August 10th, 2007 at 4:17 am
Mary:
Great post. I started to leave a message, but realized I had too much to say for a comment. See my post you inspired over on my blog. I think J&J may be in the right, but terribly wrong.
Chris
August 10th, 2007 at 7:14 am
There’s another piece to this and that’s the issue of acquiescence.
For as long as The Red Cross complied with the original trademark agreement with J&J, all was well. However, when TRC start using somebody else’s property to raise money, they crossed a line and kind of forced J&J to sue — because if they let this kind of thing slide and TRC kept doing it, their trademark would become so diluted that they would no longer be able to defend it at all.
Not being a marketing poobah of any sort, I don’t have any suggestions about how the respective parties should have handled this situation. Under the circumstances, I think that it will be easier for TRC to make J&J look bad than the other way around and that’s unfortunate because, from a legal point of view, they’re just plain wrong.
I agree with Seth: if TRC needs to raise money, they shouldn’t be doing it by selling J&J’s furniture.
August 10th, 2007 at 7:58 am
Through the Red Cross Congressional Charter - they are the only organization allowed to use the Red Cross as it’s emblem. Since the charter was not enacted until after the establishment of the organization (1881) and other organizations were using the symbol (like J&J) they were grandfathered into a claus stating that they were allowed to use the emblem to promote their products as long as they were doing so b/f 1905. Currently, there are 21 organizations who are using the emblem. So technically, it has been the Red Cross allowing J&J to use their symbol, not the other way around - which gives them every legal leg to stand on in this suit.
August 10th, 2007 at 8:15 am
Dawn,
The Red Cross never complied with the original trademark agreement with J&J as the International Committee of the Red Cross is the rightful owner of the Red Cross symbol. The trademark agreement was just something between the American Red Cross and J&J. As already explained above, the Red Cross symbol was introduced by the ICRC in 1863, well predating J&J’s use. So it rather looks as J&J took the symbol established by the ICRC and trademarked it for own commercial purposes in the US.
August 10th, 2007 at 9:31 am
As a former board member of the local chapter of the American Red Cross, we had a *lot* of these kinds of discussions before Salt Lake City hosted the 2002 Winter Olympics. J&J and the ARC have always been good partners over many years. The fact that this went to litigation indicates a failure at the highest levels at both organizations and they both should be taken to task to let it get this far.
August 10th, 2007 at 1:34 pm
Chris,
I’m not questioning your historical references but, unfortunately, they have little to do with the legal reality. Whether or not the American Red Cross or J&J should not have been using the symbol the way they were, whether or not J&J should or should not have been granted a U.S. trademark - that’s all irrelevant. Tge fact remains that they were granted a U.S. trademark which has not, evidently, been successfully challenged either administratively or through litigation.
(An interesting oversight on somebody’s part, by the way, given how much historical use could apparently be demonstrated.)
The legal position is fairly unambiguous and it’s one of the ways current trademark law is problematic. It encourages litigation because of the way trademark rights are weakened if the trademark holder fails to defend their trademark.
I do think, from a practical point of view, Mary and Bruce are quite right. Whatever the legal niceties of the situation are and whatever anybody might think about who’s right and who’s wrong … what we have here is a failure to communicate. If these two entities have a long-standing, cordial relationship, then there was major ball-dropping going on here on both sides.
August 10th, 2007 at 3:34 pm
[…] as far as visibility and neutral recognition for the Red Cross is concerned. It’s also a public relations nightmare for Johnson&Johnson who risk the wrath of consumers who may not appreciate their hard-nosed […]
August 12th, 2007 at 2:08 pm
Let’s not forget that one of the companies that TRC lisenced the brand to was Curel, a direct J&J competitor. You cannot expect J&J to like that.
August 13th, 2007 at 6:00 am
Dawn,
I perfectly understand that law and justice are two different cups of tea. It seems that both, the USPTO and the US administration made some serious mistakes. Given the legal obligations of the signatory states you cannot expect the ICRC to challenge the trademarks. The US adminstration ratified the Geneva convention in 1882, thus being obliged with ensuring proper use of the emblem, but failed to introduce the necessary legislation until 1900. In 1882, when the US entered the obligation to protect the emblem, there was no use of the emblem by J&J.
There was a clear obligation from 1882 on for the USA to protect the emblem in its jurisdiction and that would obviously include preventing companies from trademarking it for their own use.
August 13th, 2007 at 9:58 am
[…] Wow, lots of good discussion here and around the Web re J&J versus American Red Cross. (Here’s my original post and the comments) […]