A Red Cross Against Its Name: Johnson & Johnson

This week Brisbane’s street press mX picked up a story which has been causing me considerable consternation since August: American medicinal manufacturer Johnson & Johnson is suing the American Red Cross for trademark violations over their use of the red cross symbol (left: image from Flickr user Newell the Jewell, under Creative Commons BY-NC-ND 2.0). Initially reported in the New York Times on 9 August 2007, the suit contends that the extension of the American Red Cross’s product line into emergency preparedness and grooming kits violates a long-standing agreement between the parties. The disagreement centres around the entrée into the market of third parties licensed by the American Red Cross who are selling, inter alia, humidifiers, medical examination gloves, nail clippers, combs and toothbrushes, which is deemed to be pushing the boundaries of what a not-for-profit can undertake, in that they compete directly with the J&J product line. The agreement between ARC and J&J dates back to 1895, when J&J was granted the exclusive use of the trademark for ‘chemical, surgical and pharmaceutical goods of every description’.

The president of the ARC, Mark Everson, is reported to have commented that these actions were ‘obscene’ and were such that ‘J & J can make more money,’ and felt that these were bullying tactics towards the non-profit. J&J retorted that they had the ‘highest regard for the American Red Cross and its mission’, and that the action was lamentable, but nevertheless necessary to protect the brand.

As with taking Creative Commons to court, this is an instance of where suing non-profits isn’t a smart move, if we are to appeal to the economic imperative. Certainly, this litigation can help draw lines in the sand as to what is legally acceptable. What it doesn’t do is bolster what is ethically acceptable. Take a minute to read the history of the American Red Cross. Its charter, as endorsed by Congress, is to be active in times of domestic and international disaster relief, and to assist prisoners of war in accordance with the Geneva Conventions. When a corporation confronts these noble aims arguing its right to turn a profit, it can only come off worse.

All About the Attribution? Dump That Idea!

According to the Associated Press, a lawsuit filed in Dallas yesterday has named Virgin Mobile USA and its Australian counterpart, Virgin Mobile Australia, as defendants in a charge of libel and invasion of privacy of Allison Chang, who was unknowingly featured in an Australian advertising campaign ‘Are You With Us Or What?’. Captioned ‘Dump Your Penfriend’, the Virgin billboards and Website ads are alleged to have caused the Texas teenager grief and humiliation.

Interestingly, the suit names Creative Commons, the Massachusetts-chartered 501(c)(3) tax-exempt charitable corporation, as a co-defendant in the action, given that Virgin has been able to use the images because of CC licensing available on the Flickr website, where the image (titled ‘alison for peace’) is hosted. (It is to be noted that the image is now licensed under full copyright, although prior CC terms will persist.) The suit argues that Virgin Australia has not properly acknowledged the photographer, Justin Ho-Wee Wong, on its advertising, thereby not complying with the ‘BY’ attribution terms. As can be seen in a copy of the billboard also hosted on Flickr, there has been attribution made to the stream: http://flickr.com/photos/chewywong. Discussion has ensued about whether individuals should be informed that images are being used under CC, whether model release forms should be sought, and moral rights accrue to those photographed. Fundamentally, the mistake being made here is that this is NOT a copyright issue. It is an issue of defamation, and in certain jurisdictions, privacy. (See Lawrence Lessig's and Joi Ito's posts about the differentiation.) CC is not a scheme which contends with issues other than copyright. However, this will again be a major decision for the success of the flexible copyright scheme, as CC is alleged to be accountable for the actions of advertisers seeking to abide by their terms.

Creators may now come to question licensing under CC, as they may fear where their images ‘end up’. It is an unfortunate episode that the IP and issues of identity have been conflated. More commentary to come as Virgin Australia responds to the charges. In the interim, see more discussion on Slashdot, and on Flickr Central, where photographers are debating the merits of licensing.

Queensland Judge Appointed to High Court

Queensland citizens and advocates today celebrate the appointment of Justice Susan Keifel to the High Court of Australia. Justice Keifel is the third female to be appointed to this position, and will share the bench with Justice Susan Crennan, appointed in 2005. Her Honour replaces Queenslander Justice Ian Callinan, who is retiring on 31st August, one day short of his 70th birthday.

In an interview conducted with ABC television news, the Honourable Paul de Jersey AC Chief Justice of Queensland commented that it was important for Queensland to maintain its position on the High Court, to illustrate the on-going role to be played by the State in federal affairs.

Moreover, this appointment, albeit widely considered to fit with the Howard Government’s conservative agenda, illustrates the importance of female presence on the bench.

Justice Keifel famously left school when 15, going to work as a legal clerk at a ‘prominent law firm’ Messrs Fitzgerald, Moynihan and Mack. Keifel gained no ordinary legal training: in 1984 she was awarded a Master of Laws from Wolfson College, Cambridge, with the CJ Hamson prize in Comparative Law. Excelling at her bar exams, she was the youngest female to make silk in Queensland in 1987, whereupon she was appointed to the Supreme Court of Queensland in 1993, and to the Australian Federal Court in 1994.

At a recent lunch-time address to the Australian Academy of Law, of which she is a foundation fellow, reported by The Australian, Keifel J stated:

"Perhaps the time has come for judges to give detailed consideration to their concerns and articulate them. I am not sure solutions will be obvious but clear statements about what is unacceptable in presentation must be a starting point. Case management is not itself the solution."

We wish her all the best for her appointment.

IceTV Baby

In a decision handed down by Bennett J of the Australian Federal Court, Sydney’s IceTV has succeeded in proving that its electronic program guide (EPG) ‘does not reproduce a substantial part’ of the Nine Network’s program guide. The decision supported Nine’s claim to ownership of the copyright, but upheld that IceTV’s guide was compiled independently. From the instigation of proceedings in 2006, IceTV had asserted that ‘IceGuide is independently compiled by the company from a suite of sources in the public domain.’

This decision allows users to continue to schedule television recordings on a number of devices, including PCs, video recorders, and mobile phones. The IceTV service currently has 6500 fee-paying subscribers and an additional several thousand on a trial basis. The service is pitching itself as a viable alternative to TiVo, whose official introduction into Australia still remains unclear.

The Sydney Morning Herald observed that many viewed these actions as a traditional media vs. new media battle. Undoubtedly, the service will see increased success in the wake of this decision.