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Johnson & Johnson is a little cross

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Kai Ryssdal: Time for a little Marketplace game of free association. Here we go. Category is brand images. When you see a little red cross on a package, do you think of Band-Aids or disaster relief? The right answer might well be both, which is how this next story came about. Johnson & Johnson is suing the American Red Cross over the symbol they’ve shared for more than 100 years. Back in 1895, the Red Cross agreed not to use the symbol for commercial purposes, but J&J claims they’ve started doing just that. Jeremy Hobson reports.

Jeremy Hobson: In 2004, the American Red Cross started allowing companies to sell products stamped with a red cross. Products ranging from emergency kits to nail clippers.

The organization gets a share of the revenue, and Johnson & Johnson, which holds a trademark on the red cross design, has a problem with that.

Here’s J&J attorney John Crisan:

John Crisan: It leads to confusion in the marketplace. People thinking they’re buying Johnson & Johnson-branded products and actually they’re not.

So Johnson & Johnson wants all the Red Cross products taken off the shelves and destroyed, and all the proceeds from the ones that have already been sold. A number that totals less than $5 million, according to the Red Cross, which says those profits currently go to disaster relief and general operations.

Red Cross spokesman Carrie Martin says she’s astonished by the lawsuit.

Carrie Martin: We’ve had a long history and we believe that these consumer products that we’re creating need to get into the hands of Americans so they can be better prepared.

So who’s right?

Trademark law expert Michael Froomkin at the University of Miami says Johnson & Johnson has a pretty good case.

Michael Froomkin: I mean it seems really weird to be defending the multibillion-dollar conglomerate against the nice guys of the Red Cross, but again if what’s in the complaint is true, they’ve got a point.

Froomkin says Johnson & Johnson had no choice but to act.

Froomkin: With trademark law, if you let the camel’s nose get under the tent, pretty soon you don’t even own the tent anymore.

Johnson & Johnson won’t say whether it’s lost any business as a result of the red cross ruckus. But it’s worth noting the company made more than $3 billion last quarter.

In Washington, I’m Jeremy Hobson for Marketplace.

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