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."

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