Johnson & Johnson's complaint against humanitarian organization distorts
history and law
WASHINGTON, Aug. 10 /PRNewswire-USNewswire/ -- In response to the August 8 lawsuit filed against it by Johnson & Johnson (J&J), the American Red Cross today released a detailed rebuttal, providing the legal and historical framework for its use of the red cross emblem.
"The mission of the Red Cross is to prevent, prepare for and respond to disasters and emergencies, and people look to the Red Cross emblem and see a worldwide symbol of humanitarianism," said Mark W. Everson, President and CEO of the American Red Cross. "The Red Cross will vigorously defend and protect our emblem and mission."
The Red Cross has been selling first aid kits commercially in the United States since 1903. Until now, J&J has never challenged this activity. In fact, for over 100 years, J&J and the Red Cross have enjoyed their concurrent right to use the Red Cross emblem.
By offering Red Cross first aid, health, safety and emergency preparedness products at retail locations, the Red Cross is reaching more families and making it easier for Americans to get prepared. The money the Red Cross receives in the sale of these products to consumers is reinvested in its humanitarian programs and services.
The Red Cross, a nonprofit, received only $2 million in revenue from the sale of its products in 2006. J&J, a corporation, received $53.3 billion in annual revenue in 2006.
"We hope that Johnson & Johnson will act as a good corporate citizen and recognize the right of the American Red Cross to use our own emblem to carry out our mission -- not stand in the way," Everson said.
"Our legal argument is based on solid substantiated facts," he continued. "J&J has taken a criminal statute intended by Congress to protect the American Red Cross and is now using it to distort history and the law."
THE FACTS AND LEGAL ISSUES IN JOHNSON & JOHNSON SUIT AGAINST THE AMERICAN RED CROSS
Red Cross Established First Use of Emblem:
1. The Red Cross began using the red cross emblem in 1881, six years
before Johnson & Johnson (J&J) began using the emblem in 1887.
2. J&J obtained a trademark registration in 1887, but did not object to
the Red Cross use of the emblem at that time.
3. The Red Cross was first chartered by Congress in 1900, and that
charter was amended in 1905. The 1905 amendment gave the Red Cross the
use of the emblem, and specifically stated that "in carrying out its
purposes under this [charter], [the Red Cross] may have the use, as an
emblem and badge, a Greek red cross on a white ground..." The Charter
grants the Red Cross "to conduct other activities consistent with" its
4. In the 1905 Charter amendment, Congress intended the Red Cross to have
the exclusive use of the emblem, and this was confirmed by the U.S. Patent
and Trademark Office (PTO) when they specifically reserved an application
serial number for the Red Cross to register its Emblem in EVERY class of
goods and services without limitation.
5. J&J was concerned that it would lose its right to use the emblem on
its products, so it lobbied Congress to allow it to continue, or
"grandfather" its use of the red cross symbol. Congress passed a law
making it a crime for third parties other than the Red Cross to use a red
cross symbol fraudulently but also permitted J&J and the dozens of other
companies to continue to use the red cross emblem for only those products
used by those companies as of that time. Congress made this a criminal
statute specifically to protect the Red Cross from unauthorized users of
"Barton Agreement" Never Ratified
6. In 1895, when Congress was first considering legislation to charter
the Red Cross, J&J went to Clara Barton and negotiated an agreement (the
"Barton Agreement") that would have permitted J&J to continue to use the
red cross emblem if Congress gave the use of the emblem to the Red Cross
in a charter.
7. The Barton Agreement was effective only if Congress passed a specific
law that would have prohibited J&J from continuing to use a red cross
symbol. Congress did not pass the law, so the agreement never took
8. Thus, the Barton Agreement was effectively rendered null and void.
J&J admitted this fact in testimony before Congress in 1942 in hearings in
the House of Representatives on the "Protection of the Name and Emblem of
the Red Cross." 77th Cong., 2d Sess. 279-81 (1942).
9. It is noteworthy that although J&J makes reference to the Barton
Agreement in its lawsuit against the Red Cross, J&J did not quote the
limiting language in the complaint, nor did it include a copy of the
Barton Agreement with its other exhibits attached to the complaint. In
fact, there is no claim of ANY breach of the Barton Agreement by the Red
Cross in the lawsuit.
Dispute Over Emblem Based on Profit
10. The Red Cross has been selling first aid kits commercially in the
United States since 1903. Until now, J&J has never challenged this
activity. Thus, for over 100 years, J&J and the Red Cross enjoyed their
concurrent right to use the red cross emblem in commerce.
11. In fact, over the past century, J&J and the Red Cross have joined in
lawsuits against infringers of the right of the Red Cross and J&J to use
the red cross emblem.
12. In 2003, J&J began to complain to the Red Cross about licensing third
parties to sell Red Cross first aid kits in retail stores. Red Cross
tried to partner with J&J on preparedness and on this issue, but these
conversations never led to an agreement.
13. J&J then began telling retail stores that carried Red Cross products
that there was "an existing trademark dispute" between J&J and the Red
14. During the past several years, on several occasions, J&J has tried to
convince the Red Cross to limit its use of the red cross emblem on
licensed products in retail stores. Only within the past three weeks has
it become apparent to the Red Cross that J&J was possibly doing more than
saber-rattling. Since that time, the Red Cross has been working
carefully, analyzing its legal position and weighing options.
Red Cross Disputes J&J's Claims in Lawsuit
15. J&J's first claim is for "Contractual and Equitable Estoppel." This
claim does not mention any breach of any contract, and does not mention at
all the Barton Agreement. It merely claims that the Red Cross made
certain historical statements that it "would not enter into such
commercial licenses" regarding the sale of certain Red Cross products that
J&J relied upon to its detriment.
16. J&J's second claim is for "Violation of 18 U.S.C. Section 706." J&J
alleges that the Red Cross and its licensing partners are somehow
violating this statute. What J&J's lawsuit fails to recognize is that this
criminal statute originally was passed by Congress as a shield to protect
the Red Cross from other companies that fraudulently infringe upon the
right of ARC to use the red cross emblem. At no time has any federal
agency, including the Department of Justice, ever claimed that the Red
Cross was in violation of the use of its red cross emblem that Congress
gave to it more than 102 years ago. Now J&J is attempting to use this
criminal statute as a sword against the Red Cross.
17. J&J's third and final claim is for a claim that does not even involve
the Red Cross. It is for a separate issue against one of the Red Cross's
18. In its claims for relief, J&J asks the court to order the Red Cross
from undertaking any "sale to the consuming public" of emergency
preparedness and related products, even on the Internet and through Red
Cross chapters and outlets. More amazing is the request that the court
order the Red Cross to surrender to J&J all of these preparedness products
"for destruction" by J&J.
19. To date, the Red Cross has generated about $2 million in funds for
the organization from the sale of these products in retail stores. In
contrast, J&J recently made $11 billion in profits in one year. This
lawsuit is not about any threat to J&J's retail business.
20. In short, this lawsuit is a direct attack on the American Red Cross
and its right to use the red cross emblem -- a right that was given by
Congress. Both the Red Cross and J&J have the legal right to use the
emblem as they deem necessary to fulfill their respective missions, for
the Red Cross to prepare the public for emergencies and disasters, and for
J&J to make money in the marketplace. There is no merit to any of the
legal claims asserted by J&J in this lawsuit. The Red Cross intends to
vigorously defend the suit. We will not let J&J take the Red Cross out of
the name American Red Cross.
The American Red Cross helps people prevent, prepare for and respond to emergencies. Last year, almost a million volunteers and 35,000 employees helped victims of almost 75,000 disasters; taught lifesaving skills to millions; and helped U.S. service members separated from their families stay connected. Almost 4 million people gave blood through the Red Cross, the largest supplier of blood and blood products in the United States. The American Red Cross is part of the International Red Cross and Red Crescent Movement. An average of 91 cents of every dollar the Red Cross spends is invested in humanitarian services and programs. The Red Cross is not a government agency; it relies on donations of time, money, and blood to do its work.
|SOURCE American Red Cross|
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