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AMERICAN CENTRAL COMMITTEE
THE RED CROSS INSIGNIA AND NAME AS A TRADEMARK,
BY MAJOR-GENERAL GEORGE W. DAVIS, U. S. A., RETIRED, CHAIRMAN, CENTRAL COMMITTEE.
Before July 8, 1870, there was in existence no national laws or regulations respecting labeling with proprietary marks the goods entering into the commerce of the country and foreign nations, but it is known that the custom or practice of using such commercial marks antedated by many years the first national legislation on the subject, the Act of July 8, 1870.
Except as noted below, under the terms of this act any trademark could be registered if lawfully in use on the date of the act, and thereafter if such mark had been previously in use. Registration was prohibited if
(a) The name of a person, firm or corporation was unaccompanied by a mark to distinguish it from the same name when used by another person.
(6) A trademark identical with or similar to one already registered.
All trademark registrations were to be valid for twenty years, and were renewable at the option of the original registrants or their assignors.
To the Geneva Convention of August 22, 1864, the United States was not a party, but it was adhered to by the United States on July 26, 1882, and, in August, 1884, this treaty was ordered by the President to be observed by the Army of the United States, and the Red Cross insignia was required to be displayed on ambulances, hospitals and arm-bands of the personnel of the Army Medical and Hospital Service.
The fact that the nations represented by delegates at Geneva in 1864 had adopted the Red Cross as a distinguishing mark for the medical and sanitary service of armies and of volunteer assistants of such services was soon publicly known throughout the world, and this insignia was soon made use of and adopted as a distinguishing proprietary mark by merchants and manufacturers engaged in commerce. In less than four months after the enactment of the first United States statute on this subject (July 8, 1870) a trademark was registered which embodied the use for a commercial purpose the Greek cross in red.
There was no change in this national trademark law affecting the discretion of merchants and manufacturers in choosing a distinguishing mark for their goods and wares until February 20, 1905, when a federal law was enacted that forbade the use and registration
(c) "of any mark that composed the flag or the coat of arms or other insignia of the United States or any simulation thereof, or the flag or coat of arms of any State of the American Union, of any municipality or of any foreign nation."
On March 2, 1907, this prohibition was amended, and by a law of that date was made to apply to
(d) “any design or picture that has been or may hereafter be adopted by any fraternal society as its emblem."
It has been held by the officers who administer the trademark laws that the use of the insignia of the American Red Cross Society as a commercial trademark would be in violation of this statute. How ever, the federal statute of December 5, 1905 (see below) was far more comprehensive in its restriction.
The first use made in the United States of the Geneva cross as a badge worn by volunteer helpers for the sick and wounded in war in any country, was in the years 1864-1865, by an auxiliary society of the United States Sanitary Commission serving with the Union Army campaigning in Virginia, but at the close of that civil conflict this society was disbanded and the use of the Greek (Geneva) cross was discontinued, but not until a failure had resulted from efforts made in 1866–1867 by some of those connected with the Sanitary Commission to organize an American Red Cross. This failure was primarily and probably solely due to the fact that at this time the United States Government had not adhered to the Geneva Treaty of 1864.
The National Red Cross of the United States was formally recognized by the federal statute on January 6, 1900, this recognition applying to a self-styled American Association of the Red Cross that dated from the year 1881.
The above cited organic act of June 6, 1900, contained a further restriction respecting the use of the Red Cross insignia. It forbade
(e) “Any person to wear or display the sign of the Red Cross or any insignia colored in imitation thereof for the fraudulent purpose of inducing the belief that he is a member of or an agent for the American National Red Cross."
It will be noted that this restriction did not apply to the commercial use of the emblem as a trademark.
The Act of Congress of December 5, 1905, which reincorporated the American National Red Cross, repealed the Act of June 6, 1900, but re-enacted the above cited prohibition and contained a further restriction as follows:
) "Nor shall it be lawful for any person or corporation, other than the Red Cross of America, not now lawfully entitled to use the sign of the Red Cross, hereafter to use such sign or any insignia colored in imitation thereof for the purpose of trade or as an advertisement to induce the sale of any article whatsoever.'
This legislation prohibited the use of our emblem by all those who previous to the enactment of the law had not made a commercial use of the same as a distinguishing mark on merchandise and preparations dealt in by them, but such previous users, exercising a common law property right, could not be interfered with if that use antedated January 5, 1905; they might thereafter secure registration of such mark upon filing with their application therefor a declaration showing the date since which they had made commercial use of the emblem as a distinguishing mark on merchandise, etc.
In pursuance of the requirements of Sections 27 and 28 of the Geneva Convention of 1906, to which the United States Government is a party, the deficiencies of the federal law touching the protection of the
red cross insignia from misuse were brought to the attention of the Congress of the United States, and the Central Committee of the American Red Cross urged the enactment of such legislation as would be in strict harmony with the engagements entered into, embodied in the above cited sections 27 and 28 of the Geneva Convention.
It appears that at the date of the proclamation of this Treaty in the United States, August 3, 1907, the Greek Red Cross or the words “Red Cross" had been registered by the government for not less than 131 persons, partnerships or corporations, who thus secured recognition by registration of their previously existing property right to use for commercial purposes this insignia or the words "Red Cross.”
In the efforts made by the Central Committee to secure the enactment of legislation that would make effective the undertakings foreshadowed by the above-cited sections of the Geneva Convention, the owners of the trademarks already registered opposed the legislation, insisting that unrestricted prohibition would deprive them of rights in common law; the proposed legislation was declared to be confiscatory and therefore in conflict with the provisions of the United States Constitution, wherein it is declared that no person shall be deprived of his property except by due process of law. Those users of the Red Cross as a trademark who had not in 1905 taken any steps to secure registration saw in the new proposition an intention to cut them off not only from the right to register but from the right to continue the use of the emblem on their merchandise.
These interested parties did not fail to oppose the proposed measure, and they were successful in preventing any legislation for several years, but on the 20th of June, 1910, there was enacted what may be considered as near an approach to a compliance with the terms of the Geneva Treaty respecting the protection of the Red Cross insignia and name as it is possible to secure in the United States of America. The restrictions placed upon the commercial use of the insignia by the act of 1905 were made more comprehensive by this new statute, which also forbade the use of the words "Red Cross" as a trademark, a use that had not previously been specifically forbidden.
The legislation is as follows:
(g) “That from and after the passage of this Act it shall be unlawful for any person within the jurisdiction of the United States to falsely or fraudulently hold himself out as or represent or pretend himself to be a member of or an agent for the American National Red Cross for the purpose of soliciting, collecting, or receiving money or material or for any person to wear or display the sign of the Red Cross or any insignia colored in imitation thereof for the fraudulent purpose of inducing the belief that he is a member of or an agent for the American National Red Cross. It shall be unlawful for any person, corporation, or association other than the American National Red Cross and its duly authorized employees and agents and the army and navy sanitary and hospital authorities of the United States for the purpose of trade or as an advertisement to induce the sale of any article whatsoever or for any business or charitable purpose to use within the territory of the United States of America and its exterior possessions the emõlem of the Greek red cross on a white ground, or any sign or insignia made or colored in imitation thereof, or the words "Red Cross" or "Geneva Cross” or any combination of these words: Provided, however, That no person, corporation, or association that actually used or whose assignor actually used the said emblem, sign, insignia, or words for any unlawful purpose prior to January fifth, nineteen hundred and five, shall be deemed forbidden by this Act to continue the use thereof for the same purpose and for the same class of goods. If any person violates the provision of this section he shall be deemed guilty of a misdemeanor, and upon conviction in any federal court shall be liable to a fine of not less than one or more than five hundred dollars, or imprisonment for a term not exceeding one year, or both, for each and every offense."
Since the enactment of the law of 1905 there have been 53 registrations of the Red Cross insignia or the words “Red Cross” as a trademark, all of those offering same for registration having made declaration that they had been making use of this emblem for the same purpose previous to December 5, 1905, and since the legislation of 1910 there have been 4 registrations in favor of those who claimed to have acquired by previous use a common law property right in the mark.
That there are many persons who are ignorant of the existence of any prohibitory statute or who knowingly violate its provisions by using the emblem without any pretense of having in 1905 thus acquired right is certain but it has generally been found to be sufficient to call attention to the statute in order to cause the ignorant to discontinue such unauthorized use. It is the policy of the Red Cross to suggest to the law officers of the government the criminal prosecution of those who may wilfully disregard the law.
It is possible that the prohibitory character of the above cited legislation may be strengthened in one particular: This as respects the establishment judicially of the validity of the declaration, by the applicant for new registration (as well as those who have effected registration since 1905), which asserts the use of the emblem as a trademark previous to 1905. These declarations are now ex parte, no proof of verity being offered or exacted. It is believed that many who have obtained registration on the mere assertion of the interested party would not be able to confirm and validate, by evidence of disinterested parties, the declarations they have made of rights by use acquired before 1905. The Central Committee is taking steps looking to the enactment of such further protective legislation by the United States Congress.
EXCERPT FROM SEVENTH ANNUAL REPORT OF THE
AMERICAN NATIONAL RED CROSS
APRIL 1, 1912
THE SECRETARY OF WAR.
SEVENTH ANNUAL REPORT OF THE AMERICAN NATIONAL RED
APRIL 1, 1912.-Referred to Committee on Foreign Affairs and
ordered to be printed
Washington, Mar. 29, 1912. The SPEAKER OF THE HOUSE OF REPRESENTATIVES.
SIR: I have the honor to transmit herewith the Seventh Annual Report of the American National Red Cross, made pursuant to the provision of the act of Congress approved January 5, 1905 (33 Stats., p. 599), entitled "An act to incorporate the American National Red Cross, and to state that the receipts and expenditures as shown on the accompanying report of the treasurer of the American National Red Cross, covering the period from January 1, 1911, to December 31, 1911, have been audited and found correct. Very respectfully,
H. L. STIMSON,
Secretary of War.
Illegal Use of the Red Cross Emblem. In nearly every instance of the misuse of our emblem and name, friendly correspondence with the users has shown that such use is generally due to ignorance of the law, and when the statute applicable is made known the improper display of the insignia is at once discontinued. The situation is somewhat embarrassed by the fact that a very considerable number of individuals, firms, and corporations are