Judge Allows Red Cross to Continue Licensing Symbol's Use
A 34-page decision parsing the meaning of the Geneva Conventions and the congressional charters granted to the American Red Cross means that ARC may license the familiar red cross, which has been part of ARC since its origins with Clara Barton in 1881, for commercial use by third parties. U.S. District Judge Jed S. Rakoff ruled May 14 that an unfair competition, tortious interference, and trademark dilution lawsuit filed in 2007 by Johnson & Johnson and also Johnson & Johnson Consumer Companies Inc. has no merit.
Rakoff ruled that Johnson & Johnson's trademark dilution claim required J&J to show that rhe Red Cross name and emblem are truly distinctive as a marker of J&J's goods, which he held to be "impossible" because ARC has been using them for more than 100 years to identify workers, volunteers, shelters and first aid supplies and has placed them on textbooks, training materials, blood supply packaging, and more. J&J since 1910 has possessed a grandfathered right to use the name and emblem, but a grandfathered user "cannot use federal trademark dilution law to trump the dominant use for the emblem granted by Congress to ARC," Rakoff wrote in his opinion, which is available via a link at www.redcross.org. He refused to grant ARC's motion for summary judgment on J&J's claim of tortious interference with contractual relations, however, and ordered the parties to schedule a trial date for remaining claims. J&J has used the red cross emblem since before 1900, he noted.
"The American Red Cross is pleased that the Court has upheld our right to use our trusted emblem to provide consumers with products that help protect their families health and safety," Mary S. Elcano, acting president and CEO of ARC, said in a statement today. "Whenever the Red Cross emblem can be used to advance our mission - whether flying above blood donation sites, worn by relief workers, or printed on emergency first aid kits - we will continue to display it proudly. We have said from the beginning that Johnson & Johnson's lawsuit is meritless, and we are gratified by Judge Rakoff's ruling in our favor. We hope J&J will work with us to bring this dispute to a prompt end so we can focus on what's important: delivering lifesaving Red Cross services to the American people."