For those who have been following the litigation surrounding the use of the red cross emblem, I just wanted you to know that earlier today Johnson & Johnson and the American Red Cross announced that they have reached a resolution of this matter.

Late Wednesday, United State District Judge Jed S. Rakoff issued a decision about whether Johnson & Johnson could pursue some of the claims made in its complaint against the American Red Cross to restore the long-held legal boundaries surrounding the use of the Red Cross trademark. Given this matter is still pending, there isn’t much more to say about our legal strategy beyond what has been already said in public statements (here and here) and on this blog (here, here, here and here), but for those who are interested, below is the company’s statement on Wednesday’s decision:

We are pleased that the Court upheld Johnson & Johnson’s use of its Red Cross trademark over the past century as entirely appropriate under federal law, and that the Court upheld our right to pursue the tortious interference and breach of contract claims. We are disappointed that the Court rejected our claims involving ARC’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.

Of course, it is imortant to keep in mind that Johnson & Johnson remains committed to supporting the longstanding mission of the American Red Cross to provide relief services in times of natural disasters.

Today, The New York Times editorial page commented on the concept of preemption, basing much of their position on an April 6 New York Times article on the same subject and once again featuring ORTHO EVRA®, the birth control patch marketed in the U.S. by our Ortho-McNeil unit. Today, Ortho-McNeil published a letter from David Norton, the Company Group Chairman, Worldwide Commercial and Operations, who is responsible for the Ortho-McNeil business that provides more context from our perspective for those who are interested.

Yesterday, The New York Times published an article entitled, “Drug Makers Near Old Goal: A Legal Shield.” The article is primarily about a legal doctrine called pre-emption, but ORTHO EVRA®, the birth control patch marketed in the U.S. by our Ortho-McNeil unit is prominently featured. For those interested, my colleagues at Ortho McNeil have published their position on this article on their website.

As I’ve mentioned lots of times, legal disputes are complex matters that are often best left to the courts instead of the media. This was abundantly evident earlier this week.

Prompted by a press release issued by the American Red Cross that declared that “a very significant portion” of Johnson & Johnson’s suit against them was dismissed by the Court, some news outlets initially ran incomplete and, at times, misleading accounts of the judge’s decision.

A lot of this was due to reporters simply relying on the American Red Cross’s release about the suit. What their release failed to mention was that just one of eight claims originally alleged by Johnson & Johnson was rejected by the court. Indeed, the Johnson & Johnson lawyers were pleased with the court’s decision, which in large part denied the American Red Cross’s motion to dismiss, thereby allowing the Johnson & Johnson case to move forward as planned.

What became evident as I spoke to many of these reporters and gave them our perspective was that most hadn’t read the original or amended complaints, nor had they seen the court’s decision before publishing their stories. Instead, most based the tone and focus of their articles on the American Red Cross press release. (UPDATE: The passage above now includes a link to the Amended Complaint.)

Sigh. This is not surprising given the ever-growing need for speed in the media — but it is frustrating.

I’m all for providing details and information whenever possible, but news organizations should also have a responsibility to get their facts in order – particularly in legal matters where both sides have a story to tell and where there many facets to consider before drawing a conclusion.

Earlier this week, Richard Sambrook of the BBC published some quotes on his blog from a lecture given by David Leigh of The Guardian newspaper that I thought particularly apt. Though I don’t agree with all that he says, I was struck by Leigh’s call for more care in reporting:

You can get junk food on every high street. And you can get junk journalism nowadays in every outlet there is. But just as there is now a movement for Slow Cooking, I should also like to see more of a demand for Slow Journalism.

Slow Journalism would show greater respect for the craft of the reporter – a patient assembler of facts.

Whether the author is a reporter for a traditional news organization or a blogger, complexity is a dish that requires careful preparation. When short cuts are taken, the result can be difficult to swallow.

Yesterday’s New York Times carried – for the second time in a week – a story highlighting the legal strategy the Johnson & Johnson affiliate company, Cordis Corp., took in a patent dispute with Boston Scientific. Last week, Cordis’s communications staff provided the newspaper with a statement explaining that case, but they chose not to include or reference the points raised in that statement in yesterday’s article. Have a look at their statement.

Since Johnson & Johnson filed suit against the American Red Cross back in August, I’ve heard from friends, acquaintances and colleagues — critics and supporters alike — asking why I don’t talk more about this case on JNJBTW.

While I’d often like to provide more context and information about legal actions — or introduce legal experts who can do so — as I’ve said before, Johnson & Johnson typically prefers not to litigate its cases outside of the courts.

I mention this because yesterday the American Red Cross submitted its response to the Johnson & Johnson suit, providing their legal position. Our position on this case can be found on our website. The ARC’s filing comes on the heels of the filing of an amended complaint by Johnson & Johnson earlier this month.

Though there will no doubt be renewed questions about the reasons for the lawsuit and the validity of our legal arguments, for the time being I’m going take a pass on any further discussion of this suit on JNJBTW. As indicated in the statement on our website, it is now appropriate to let the judicial process take its course.

Anyone reviewing the court filings can easily see why there is a reluctance to discuss ongoing lawsuits outside of the courts. The documents provide extensive details about the use of the Red Cross symbol over the past 100 years and why both organizations believe they are in the right. That’s why continued debate over this dispute is best left to a venue where there are rules covering the submission and presentation of facts – thereby giving both organizations a level playing field to lay out their cases.

Keeping employees informed on the status of events impacting the company is critical, particularly in a large, decentralized organization like Johnson & Johnson. In an email to employees today, CEO Bill Weldon addressed some aspects of the lawsuit filed against the American Red Cross and some of its licensees. He said he was providing perspective and background information that might be helpful to employees in their personal and professional conversations about the topic. Rather than repeating what he said, I’ll simply extract from his letter below:

“…We have generously supported the American Red Cross and its charitable endeavors and will continue to do so. However, we ultimately felt we had no other choice but to seek protection of our trademark rights to the Red Cross symbol through our justice system. For many months, we tried unsuccessfully to resolve the differences on an amicable basis and even requested that the parties enter into mediation to achieve this objective, but the American Red Cross refused to do so.

“Sometimes it is important to keep things simple in discussion. Here are some simple facts about the civil complaint Johnson & Johnson filed against the American Red Cross:

“1) We are not asking the American Red Cross to stop using the Red Cross symbol for its legitimate purposes.

“2) We are asking that the American Red Cross stop licensing the Red Cross symbol to for-profit companies that use the trademark to compete with Johnson & Johnson products that have had exclusive rights to use the Red Cross symbol for over 100 years.

“3) We continue our long-standing support for the primary mission of the American Red Cross in humanitarian relief.

“4) We expect to contribute or direct monetary gains from the lawsuit itself to philanthropic purposes. Our focus has always been on the protection of our intellectual property.

“5) If we did not pursue this action, we would jeopardize rights to one of Johnson & Johnson’s longest-lived, most trusted trademarks and establish a dangerous precedent.”

The news this week about the decision to sue the American Red Cross for trademark infringement has stirred up loads of coverage in the MSM as well as in the Blogosphere. Much of the coverage touched on the impact taking on a charity will have on the Johnson & Johnson reputation.

John Mack at PharmaBlogosphere had a broad wrap-up of the coverage yesterday, listing the many different perspectives provided, but I thought I would take a few moments to call attention to some of the posts that caught my eye. (John — as you can see, we have now boarded the train.)

Like many other bloggers and observers, Ed Silverman at Pharmalot and Peter Rost (BTW, congratulations Peter on your new role at BrandWeek NrX) at BrandWeek NrX, both questioned whether the suit was a wise move given the potential damage to Johnson & Johnson’s public image.

As Ray Jordan pointed out in a post yesterday, though public perceptions of Johnson & Johnson were taken into account, this was about protecting intellectual property and upholding the law — and many attempts were made to work with the Red Cross to resolve this before it got to this point. To give on this point raises the risk that others will follow the American Red Cross and violate the trademark on these and other products.

Some folks seemed to understand this.

Seth Godin certainly did, and on his blog went on to propose what the Red Cross should be saying publicly, given it has violated the Johnson & Johnson trademark.

Steve Woodruff at Impactiviti likewise expressed some sympathy to Johnson & Johnson’s position — and the need to protect the trademark — though he pointed out the beating the company is likely to take in the court of public opinion for taking these steps. On his StickyFigure blog he asks whether principle or pragmatism will carry the day.

We’ll see. In the meantime, my friend Margaret Gurowitz has provided some history of the origin of the Red Cross logo on Kilmer House that is well worth reading.

It was a busy night.

As a former journalist, I appreciated how undeniably juicy the story would be: Johnson & Johnson sues the American Red Cross and other parties over…. What?! … the use of the RED CROSS?!

It was almost too easy.

I also know that companies, like Johnson & Johnson, built on innovation and long-lived brands must resolutely defend their rights in these innovations, and in these brands.

One of Johnson & Johnson’s oldest trademarks is the Red Cross design. We began using the Red Cross design and “Red Cross” word trademarks in the United States in 1887, predating the chartering of the American Red Cross. The company has had exclusive rights to use the Red Cross trademark on products in certain categories for over 100 years. Since its creation, the American Red Cross has had the rights to use the Red Cross trademark in connection with its non-profit relief services.

Here’s a collage of our early products, including a couple using this trademark (click to enlarge):

If you’re interested in the history of Johnson & Johnson’s use of the Red Cross symbol, our history blog, kilmerhouse.com, will have some additional background and photos available later today. Interestingly, Clara Barton herself acknowledged and affirmed our rights to this exclusive use of the mark back in 1895.

It was disappointing to discover in recent months that the American Red Cross had started a campaign to license the trademark to several businesses for commercial purposes on all types of products being sold in many different retail and other commercial outlets. These products include baby mitts, nail clippers, combs, toothbrushes and humidifiers, as well as products that fall within Johnson & Johnson’s longstanding product categories. This action is in direct violation of a Federal statute protecting the mark as well as in violation of our longstanding trademark rights. Here’s a photo of some of these products (these particular ones are sold by Learning Curve International, Inc., under license from the American Red Cross, and manufactured by RC2. Click to enlarge):

From my perspective, with responsibility for Public Affairs at Johnson & Johnson, I was delighted that we were attempting to resolve this issue through cooperation and discussion with the American Red Cross, an organization for which we have much respect (and to which, by the way, we contributed over $5 million cash and additional product and volunteer time over the past three years).

I was saddened, of course, to learn that, unlike in decades past, the American Red Cross was not working through this issue with us. In fact, they had rejected our offer to turn to third-party mediators to find an agreeable resolution, even after we had indicated our willingness to use a mediator recommended by the American Red Cross itself.

Johnson & Johnson was left with no choice but to seek protection of our trademark rights through the courts. A suit was filed yesterday morning in the United States District Court of the Southern District of New York.

As mentioned in an earlier post , Johnson & Johnson seldom comments on lawsuits in progress, preferring to leave to the courts the difficult job of assessing fact and interpreting law. Nonetheless, the American Red Cross issued a strongly worded press release Wednesday evening objecting to our action. We worked energetically Wednesday night to provide the media with fair balance on this story, including public issuance of our own statement concerning the suit and providing some night-time telephone interviews to better inform reporters.

Our small media relations group was reduced even further by summer vacations (including Marc Monseau, who does double duty as our chief resident blogger – that’s why I’m pinch-hitting this posting). Nonetheless, we felt most every journalist we engaged with (including bloggers) gave fair hearing to both sides of this matter.

So, I’ve now lived a classic corporate public affairs nightmare: announcing a lawsuit against the American Red Cross. Would I have chosen this exercise as a reputation-building opportunity for Johnson & Johnson? No, of course not.

But keep in mind that the law requires organizations and individuals to act against infringers of trademarks or they lose their rights. In other words, as much as we might respect the American Red Cross, if we didn’t act we could open the floodgates to all infringers of our trademark and could do nothing about it. So even though we remain committed to supporting the primary mission of the American Red Cross through our philanthropic efforts, we simply can’t give them a pass on violating our trademark rights.

The goal of our complaint is to restore the long-standing legal boundaries that have surrounded the use of the Red Cross trademark. We certainly regret that we had to take this step, but we are confident that the courts will protect our legitimate rights to this venerated trademark.