Healthy Skepticism Library item: 13675

Warning: This library includes all items relevant to health product marketing that we are aware of regardless of quality. Often we do not agree with all or part of the contents.

Publication type: news

Saul S.
Judge Sides With Red Cross Over Trademark
New York Times 2008 May 16
http://www.nytimes.com/2008/05/16/business/16redcross.html?_r=1&partner=rssnyt&emc=rss&oref=slogin

Full text:

A decision by Johnson & Johnson, the giant health care conglomerate, to sue the American Red Cross last year for commercializing the Red Cross symbol may be turning into a bit of a disaster for the company.

This week the company lost the second round in its trademark dispute against the disaster relief agency when a federal judge in Manhattan threw out most of the case.

In a decision late Wednesday, Judge Jed S. Rakoff of United States District Court said the Congressional charter for the Red Cross gave it the right to use the symbol – a Greek red cross against a white background – even for business purposes.

The company and the Red Cross had amicably shared use of the symbol for more than a century through an agreement signed in 1895. Johnson & Johnson has also used the symbol on packaging for many of its consumer health products, like Band-Aids.

But the Red Cross angered Johnson & Johnson beginning in 2004 by licensing the symbol to other companies for use on commercial items sold in stores as part of the organization’s fund-raising program.

The items included humidifiers, hand sanitizer gel, medical examination gloves, nail clippers, combs and toothbrushes. Some were part of first-aid kits sold at Target and by other retailers. Red Cross received part of the proceeds.

Last August, the company said it had no recourse but to take the dispute to court. In his second ruling dismissing part of the case – the first one was in November – Judge Rakoff said that charitable reasons for Red Cross’s business ventures made them all the more reasonable.

“The fact that the ultimate purpose of these licensing activities is a ‘charitable purpose’ – i.e. to raise funds that A.R.C., a not-for-profit organization, can utilize for its charitable endeavors – only further emphasizes their legitimacy,” his decision said.

Judge Rakoff said the doubtfulness of Johnson & Johnson’s claim against the organization was “well illustrated by the ironic fact” that in 1986 the company itself entered into a similar promotional agreement with the Red Cross.

At that time, the company agreed to donate 5 cents to the Red Cross for coupons redeemed to buy company products. The coupons said: “Help Johnson & Johnson support the American Red Cross. For each purchase with the coupon below, Johnson & Johnson will donate 5 cents to the American Red Cross.”

While some claims in the case remain unresolved, including the accusation that the Red Cross purposely interfered with two of the company’s business partners, the Red Cross all but declared victory on Thursday.

“We have been vindicated by the court on the major issues,” the organization’s acting chief executive, Mary S. Elcano, said. “We want them to get rid of this case. It’s been meritless from the very beginning.”

Ms. Elcano also said the case had been a disruption requiring hearings and document requests that have disrupted the organization’s charitable activities since last August, when the lawsuit was filed.

“That’s what we want to be about: to deliver the lifesaving services that the Red Cross provides,” she said.

Marc Monseau, a Johnson & Johnson spokesman, said: “We are disappointed that the court rejected our claims involving A.R.C.’s commercial uses of the emblem. We are reviewing the decision and look forward to continuing this process to resolve our legal dispute with the American Red Cross.”

Mr. Monseau added, “The company does remain committed to the longstanding mission of the Red Cross to provide relief services.”