In a lawsuit filed by Johnson & Johnson (J&J) against the American Red Cross and four of its licensing partners for "unlawful conduct," J&J is demanding that the Red Cross and its licensing partners stop using the Red Cross emblem permanently. The demand is to stop using the mark on first aid, preparedness and related products sold to the public; surrender to J&J for the destruction the Red Cross' inventory of accused products; hand over to J&J all Red Cross proceeds from the sale of these products with interest; and pay punitive damages to J& J along with attorney fees related to its legal action against Red Cross.

The Red Cross has responded to the lawsuit filed by J&J by releasing a detailed rebuttal that provides the legal and historical framework for its use of the Red Cross emblem. The Red Cross will defend and protect their emblem and mission vigorously according to President and CEO Mark W. Everson. "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."

The Red Cross began using the red cross emblem in 1881, six years before J&J began using the emblem. At that time, J&J obtained a trademark registration but did not object to the Red Cross using the emblem. Chartered by Congress in 1900 and amended in 1905 - The Red Cross was given the right to use the emblem to "carry out its purposes under the charter, using the emblem and badge." The Charter also granted the Red Cross "to conduct other activities consistent with" its Charter purposes. 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 reserved an application and serial number for the Red Cross to register its emblem in every class of goods and services without limitation.
J&J went to Clara Barton in 1895 (when Congress was first considering legislation to charter the Red Cross) to try and work out an agreement ("Barton Agreement") that would permit 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. The agreement was effective only if Congress passed a specific law that would prohibit J&J from continuing to use a red cross symbol. The agreement never took effect, because Congress did not pass the law. Therefore, the Barton Agreement was null and void, and J& J admitted this in testimony before Congress in 1942 (House of Representatives on the "Protection of the Name and Emblem of the Red Cross" - 77th Cong., 2d Sess. 279-81 (1942).)

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