Bloomberg

At first blush, it’s hard to imagine a crasser claim or a nervier lawsuit than the one against the American Red Cross over its rights to the red cross.

Here we have a money-making corporation taking on a storied, humanitarian organization over its world-famous symbol. We are talking about the group Civil War nurse Clara Barton founded, a group that sends a million volunteers a year into ravaged areas to ease suffering wreaked by flood or hurricane, earthquake or fire.

“I am shocked that it came to this, absolutely shocked,” American Red Cross chief executive officer Mark Everson said last week in an interview.

That he sounded like Captain Renault in the movie Casablanca is worth noting. More on that in a minute.

Who would do such a thing to this life-saving band of volunteers? Oddly, it is Johnson & Johnson, which is usually careful to tend its own public image for caring for the hurt and vulnerable.

These are the folks who Band-Aid your children’s cuts, soothe your wounds and powder your baby’s bottom.

So when Johnson & Johnson filed a suit last week against the American Red Cross for becoming too free-wheeling with that old red cross, you can imagine the shivers that went through the company’s public relations team.

The fact that Johnson & Johnson sued anyway shows how completely its lawyers and executives believed they needed to sue.

“We were very, very reluctant to take this step,” says John Crisan, general counsel for Johnson & Johnson’s consumer group. “We tried for many months to get some engagement from the Red Cross” on the issue, to no avail.

No name change

First, let’s be clear. The company isn’t asking the Red Cross to eliminate its logo or change its name.

Johnson & Johnson only wants the organization to stop selling use of the emblem to companies that are slapping it on products like nail clippers, humidifiers and, yes, first-aid kits.

Both the Red Cross and Johnson & Johnson can legally use the Red Cross trademark. By mutual understanding and government action, the two set certain boundaries a century ago as to which one of them can use it for what, according to the company. The company can use it commercially. The Red Cross gets dibs on its use for disaster-relief and public-safety work.

Both of them use the emblem on first-aid kits they produce, but only in recent years has the Red Cross been selling those kits in retail outlets. And more recently, it has been selling emblem rights to companies for a variety of products.

That is what set off Johnson & Johnson.

Commercial partners

“They don’t like the fact that we are working with commercial partners to put products in stores to help people prepare for a disaster or basic health and safety needs,” Everson said.

And yet, some of those products aren’t likely to find their way into the average home-disaster preparedness kit.

I am thinking of the All-in-One Bathing Brush and the Deluxe Grooming Kit. Both are baby products sold by the Learning Curve, and both sport bright red crosses and the brand name, the American Red Cross.

Johnson & Johnson started seeing more and more such items on the very store shelves where their items are sold. Under federal law, the company couldn’t sit still without jeopardizing its hold on the symbol.

“If you are not seen as actively policing your trademark, you could lose it,” says Frederick Mostert, former president of the International Trademark Association and chief intellectual property counsel for luxury goods maker Compagnie Financiere Richemont SA in Geneva.

Anyone’s products

The mark could turn up on just about anyone’s products, diminishing its meaning and its value for Johnson & Johnson.

Short of negotiating a compromise, “they have no choice in this situation” but to sue, says Mostert, speaking from London.

Crisan says his company tried to persuade the group to stop marketing the emblem time and again. The American Red Cross took that as mere “saber rattling,” the relief organization said in a statement.

Either way, it is hard to see how Everson could have been any more shocked by the suit than was Renault by gambling at Rick’s.

Johnson & Johnson keeps emphasizing its continuing support for the Red Cross and its hopes to continue its partnership. The Red Cross, on the other hand, is using its own humanitarian reputation to bludgeon the company as a mean-spirited money- grubber.

International movement

“This is an important organization, a part of an international movement,” Everson said. “It’s respected all over the world.”

He pointed out the Red Cross took in a mere $2 million from these licenses last year, all of it for disaster-relief and emergency-preparedness missions. Johnson & Johnson, on the other hand, made $11 billion in profit last year.

All the Red Cross wants to do with this licensing, said Everson, is “help Americans be ready for health and safety needs or for a catastrophe, a Katrina or a 9/11.”

You never know when you are going to need a humidifier.

Yes, the American Red Cross does important work, even if it doesn’t always do it perfectly. That is a mild reference to its misleading blood donation campaign after Sept. 11 and its disorganized Hurricane Katrina relief effort.

Still, Everson is right that the Red Cross is widely admired and nonprofit, while Johnson & Johnson is a money-maker.

Whether the company will prevail on the legal issues is hard to tell.

But if it wants to keep what it claims as its 100-year-old exclusive right to use the mark commercially, it had to either negotiate a compromise or sue. The Red Cross left it with only that one option.

And with that comes a Tylenol headache for the company’s PR team.

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At first blush, it’s hard to imagine a crasser claim or a nervier lawsuit than the one against the American Red Cross over its rights to the red cross.