Intellectual property journals these days are replete with stories about the growing concerns over trademark piracy, domain name ownership, and the loss of rights when a trademark ceases to reflect a brand. These concerns are not foreign to the American National Red Cross, which has been protecting its famous Greek red cross since the early 1900s.

Unlike most trademark owners, however, the American Red Cross does not possess a federal trademark registration. Instead, a federal criminal statute -- 18 U.S.C. §706 -- protects this emblem.

The Greek red cross is not the only symbol protected by U.S. criminal law. Similarly situated marks include Smokey Bear, Woodsy Owl, the Olympic Rings, the 4-H Club emblem, and the presidential seal. In addition to national protection here, the Olympic Rings and the Greek red cross are afforded significant international protection. Indeed, because of its humanitarian significance, the Greek red cross has become the most stringently protected international symbol in the world. Today, the Red Cross emblem is used to identify and protect medical and relief workers, military and civilian medical facilities in combat zones, mobile units, and hospital ships. It also identifies the programs and activities of Red Cross national societies throughout the world.

Behind this symbol lies more than a century of humanitarian tradition. At a meeting in Switzerland in 1863, international delegates recommended that volunteer medical personnel of all countries working to improve the care of the wounded on battlefields wear an easily recognizable sign. To honor the Swiss origin of this initiative, the symbol of a red cross on a white background (the reverse of the Swiss flag) was adopted.

The symbol was later incorporated into the treaties known as the Geneva Conventions. Since almost every nation in the world has signed the conventions, almost every nation has incurred the responsibility to establish a Red Cross organization and to protect the emblem of the Greek red cross.

The United States became a signatory to the Geneva Conventions in 1882. For 18 years following U.S. ratification, Congress debated how to enact this country's treaty obligations. Of particular discussion was how to ensure that use of the emblem was consistent with the conventions and how to protect the emblem from commercial exploitation.

Among the heroes in that battle for the Red Cross was Clara Barton, who persistently lobbied the United States to recognize the Geneva Conventions and who founded the American Red Cross. Today few know that Barton was also one of the first women to work for the government in the only agency that then employed women -- the U.S. Patent Office. Beginning in the spring of 1854, Barton worked as a copyist in a basement office of the agency for eight years. By 1862, horrified by the miserable treatment of soldiers injured in the Civil War, Barton left her Patent Office position to minister to the sick and wounded.

After the war, Barton lobbied for U.S. ratification of the Geneva Conventions. While she and her supporters awaited congressional action, they also took steps to meet the conventions' obligations. In 1881, the American Association of the National Red Cross was organized, and in 1893 it was formally incorporated in the District of Columbia.

In 1897, Barton also filed a trademark application for the Greek red cross symbol for use on books, pamphlets, paper, and envelopes. Thirty-one days following her filing, Registration No. 30,428 was issued. This trademark registration was later abandoned following congressional enactment of a criminal statute to protect the emblem.

On June 6, 1900, the bill to charter the American National Red Cross was signed into law. Section 4, which ultimately was codified as 18 U.S.C. §706, protected the Greek red cross symbol by making it a misdemeanor for any person or association to use the Red Cross name or emblem without the organization's permission. Penalties included imprisonment not to exceed one year and a fine between $1 and $500, payable to the Red Cross organization. Heated debates took place over the idea of imposing punishment for the essentially innocent offense of wearing the insignia of a benevolent organization.

There had been seven trademark registrations for Greek red crosses by entities unrelated to the Red Cross at the time the American Red Cross was incorporated. The existence of these users was recognized in congressional discussion of the act. However, lawmakers took no action to prohibit the rights of these earlier users. In 1905, when Congress was revising the Red Cross charter, the issue of pre-existing rights to use the emblem was again raised. Lawmakers reiterated Congress' intent that the prohibitions on use of the Red Cross name and emblem did not make unlawful the use of the Greek red cross by those with otherwise established rights. However, these sentiments were again not reflected in the Red Cross charter revision.

At the time of the 1905 revision, the number of trademark registrations with a Greek red cross had grown to 61, including several by Johnson & Johnson. Concerned over potential pre-emption, commercial users lobbied for codification of their existing trademark rights. In 1910, Congress formally established that lawful use of the Red Cross name and emblem that began prior to Jan. 5, 1905, could continue, but only if that use was "for the same purpose and for the same class of goods." By 1942, the number of companies claiming rights existing prior to Jan. 5, 1905, had swollen to more than 200. Increasingly frustrated over the prominent advertising campaigns of the pre-1905 users and others, the Red Cross lobbied Congress to prohibit all commercial uses of the Red Cross name and emblem. In testimony before the House Committee on Foreign Affairs, Hermann Hughes, secretary and general counsel of the Red Cross, testified that his office's workload since 1914 had included "over 3,500 separate abuse-of-emblem cases . . . on every conceivable type of merchandise, including doll hospitals, questionable medical clinics, and varied medicinals of doubtful efficacy, including pile cures and manhood tablets." But despite extensive hearings on the subject, no amendments were made to the Red Cross statute.

When the U.S. Criminal Code was recodified in 1948, the provision protecting the Red Cross emblem was moved from the Red Cross charter in Title 36 to Title 18. Today, criminal sanctions for misusing the Red Cross emblem, or any of the other insignias protected by federal statute, are a fine of not more than $250 or imprisonment of not more than six months.

Over the last 50 years, the number of pre-1905 users has dwindled significantly. Johnson & Johnson continues to market Red Cross brand cotton, first aid kits, and a variety of other consumer products. Nine West manufactures Red Cross shoes under license from the US Shoe Corp. Red Cross toothache medication is still available for canker sores. Some products sold in the Midwest include Red Cross canned vegetables, Red Cross salt, and Red Cross macaroni. Red Cross Nurse disinfectant, formerly distributed in the Northeast only, has begun to make its way across the country. And in a handful of states, there are Red Cross drug stores. Today, 21 pre-1905 users remain.

Misuses of the emblem continue to plague the Red Cross, but now they take a more modern form. Nurse dolls, toy ambulances, and play medical kits still frequently sport the emblem, but they have been joined by novelties, T-shirts, and items for medical professionals. While signs for medical establishments have been a mainstay of misuse, recent years have seen a growing number of walk-in emergency care clinics sporting the emblem. As the pet industry has burgeoned, the emblem has found its way onto pet first aid kits and guides. Misuses appear in movies, on television, and in computer software and games. Service companies, such as those for car repair or lawn maintenance, tout themselves as service "doctors" and incorporate medical symbols to promote themselves.

In addition, plus signs have become popular symbols in trademark applications by companies that wish to promote their products as new and improved or superior to those of their competitors. When these plus signs are thickened and colored red, they are indistinguishable from the Greek red cross. And, of course, the Internet is the newest arena for infringement. The Red Cross has been the target of a domain name pirate, and it receives many notifications about misuses appearing on various Web sites.

The Red Cross' approach to addressing misuse centers on educating others about the Geneva Conventions and the federal law providing protection of the emblem. In most cases, misusers voluntarily cease coloring their crosses or pluses red. Only infrequently is it necessary to resort to legal action.

Those contacted about misuse of the Red Cross emblem often cite the Lanham Act in defense of their use. They argue that there is no likelihood of confusion, that the Greek red cross is in the public domain, or that their use is permitted by other Lanham Act provisions. What they fail to understand is that 18 U.S.C. §706 takes precedence over the Lanham Act. Arguments regarding continuous use or incontestability do not apply unless the owner can establish use back to 1905. Distinctions as to the class of goods or services for which the mark is used are irrelevant.

The test to establish infringement under the criminal statute is whether the mark is "a Greek red cross on a white ground, or any sign or insignia colored in imitation thereof." There are no other tests of whether there is likelihood of confusion between the Red Cross' emblem and the potentially infringing mark. Due to the federal criminal statute and the United States' continuing obligations under the Geneva Conventions, the emblem cannot revert into the public domain, despite nearly a century of abuse.

Ultimately, permitting more widespread use of the emblem, thus undermining its instant identification with the humanitarian principles of the Red Cross, would not be in anybody's interest. The Greek red cross represents much more than a particular organization. It indicates to members of a devastated community that help has arrived. It provides hope in times of disaster, and, most important, it protects lives in times of war and armed conflict.

Reprinted with permission of Legal Times, 1730 M St., N.W., Suite 802, Washington, D.C. 20036. Phone: 202-457-0686. Copyright, Legal Times, 1997.

Back to Standards Page