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Fox Rothschild LLP

The Battle for Hearts and Minds
In 1905, Johnson & Johnson Corporation, headquartered in New Brunswick, registered a Greek red cross design (Cross Design) for use in connection with certain medical and surgical products with the U.S. Patent & Trademark Office in Washington, D.C. J&J owns additional federal registrations that incorporate the Cross Design as well.

J&J recently sued the American Red Cross (ARC) for its use of the Cross Design in connection with the ARC's licensing of the design of commercial products manufactured by third parties.

Press reports suggest there are a number of issues, including, perhaps, which entity — the Red Cross, or J&J — has superior rights in the mark in connection with use on medical products. Federal registration provides a party certain rights, while prior use may offer grounds to cancel the registration, under certain circumstances. Although little appears to be factually clear, one thing is plain: this is an ugly public relations battle. But there appears to be much more to the story, which is a modern example of the complexities of building and maintaining a worldwide brand.

J&J's complaint, filed in U.S. District Court in Manhattan on August 8, 2007, alleges the following:

That since at least as early as 1887, J&J has used the Cross Design in connection with a wide range of first aid and wound care products. As a result of its extensive use of the Cross Design, the mark has acquired enormous value and has become well known to the consuming public in distinguishing first aid products from J&J.

Congress chartered the American Red Cross (ARC) in 1900, after J&J began using the Cross Design. Under the ARC charter, the ARC has the right to use the Cross Design only in "carrying out its purposes," "to provide volunteer aid in time of war to the sick and wounded . . . ; to act in matters of voluntary relief . . . and to carry out a system of national and international relief in time of peace."

According to the complaint, carrying out a commercial enterprise or business is not and never has been one of the purposes of the ARC.

In January 1895, J&J and the ARC entered into an agreement that acknowledges J&J's "exclusive use of a red cross as a trademark and otherwise for chemical, surgical, pharmaceutical goods of every description." Clara Barton executed that agreement on behalf of the ARC.

Until recently, J&J and the ARC cooperated in exercising and enforcing their respective rights in the Cross Design. Each recognized and respected the line that separates their lawful uses. Recently, ARC has purported to authorize certain third parties to use the Cross Design in connection with first aid kits, examination gloves and hand sanitizers sold in Target and Wal-Mart.

J&J is asking the court for a permanent injunction preventing the ARC from using the Cross Design in connection with commercial products, for damages and other relief.

News reports suggest that J&J is bludgeoning a helpless American Red Cross to death. After all — J&J is a profitable corporate behemoth; the ARC, an organization associated with worldwide disaster relief.

A spokesperson for the ARC says he is "shocked" that J&J has sued. J&J says it was reluctant to take that step, trying for months to resolve the issues. It is unlikely that J&J did not consider the public relations challenge it would face if it filed this lawsuit.

J&J, like every major consumer products company, has likely invested heavily in developing a worldwide brand. To do this, it has had to embark on the "name game"; an intellectual property adventure, involving protection and enforcement of domestic and international trademarks and domain names.

Trademark rights are attained either through common-law or statutory trademark protection. Common-law protection is obtained by adoption and use of the mark. Under common law, protection is provided for the geographic area in which the trademark is used. However, trademark protection is primarily governed by statute; particularly, the Lanham Trademark Act of 1946.

Statutory trademark protection is available upon obtaining a Certificate of Registration from the United States Patent and Trademark Office and state trademark offices. The registration of a mark with the PTO provides constructive notice throughout the United States of a registrant's claim of ownership and is governed by federal law. Registration with a state trademark office provides protection only within the state and is governed by the laws of the particular state.

The Internet is not only a resource to provide information about possible trademark conflicts but also serves as a potentially invaluable venue through which IP owners may advance and protect their IP assets. Determine whether a domain name that matches or complements the trademarks or corporate names involved is available, or if there is any potential confusion because of a similarity with a registered domain name.

No company builds a successful brand today without intense focus on protection of assets outside the borders of the United States. No longer a luxury but a business necessity, worldwide protection is a must. But laws pertaining to trademarks are country-specific, so be careful. U.S. rights do not extend overseas without careful attention to applicable treaties and following the specific guidelines they outline.

It is likely, given the scope of J&J's trademark portfolio, that it has worked hard to develop a worldwide brand in the Cross Design. This has likely cost a fortune.

J&J and other rights holders, to the extent they believe their IP rights are infringed, have the right and the obligation to police their marks for the benefit of their shareholders.

Reports are fairly clear that both the ARC and J&J have rights in the Cross Design. J&J says that it has the exclusive right to use the mark on commercial products, and ARC may us the mark in connection with its disaster relief work. Both use the mark on first-aid kits they produce, but only in recent years has ARC started licensing the mark to J&J competitors.

So if this case will be tried in the press, we, as the jury, need to understand a few things.

First, if a company has legitimate rights in intellectual property, it has every right to enforce those rights, regardless of whether the party against whom those rights are being enforced is Halliburton or the Sierra Club. Here, for example, if there are actions being taken that decrease the value of property owned by J&J, then J&J has not only a right, but a duty to its shareholders, to combat that infringement, if appropriate.

The fact that a company is a large for-profit does not mean it is wrong and a bully. Similarly, because a company is a nonprofit does not mean it is Bambi. For-profit companies employ a lot of people. Those people have families. Many, such as J&J, for instance, spend billions of dollars on research and development on products that substantially enhance our lives. The American Red Cross, similarly, does some extraordinary work for people as well. And this article does not take a position as to which organization is more beloved in the American psyche, or which one is 'better.'

At least one purported trademark expert has said that suing the Red Cross is "like suing Santa Claus." Not quite. Santa Claus is a fictional character that does not use a mark. If J&J has rights in this mark and they are being misused and infringed, then they have every right and every obligation to stop it. If they are out of line, and the American Red Cross has prior rights, then this — and this alone — should be the basis of the discourse in this case.

Enforcement of rights is not bullying. As the public jury, if we demand a discourse on the merits of this case — rather than being vulnerable to an appeal to our emotions — perhaps that is what we will get. It is certainly what we deserve.

Mitchell is a partner with Fox Rothschild and co-chair of its entertainment and sports industries practice.

09-21-2007

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Cravath, Swaine & Moore, LLP

FIRST SOLAR IPO NAMED IPO OF THE YEAR BY ENVIRONMENTAL FINANCE MAGAZINE
In its September 2007 issue, Environmental Finance names the 2006 initial public offering of First Solar Inc. its IPO of the Year. Cravath, led by partner John T. Gaffney, represented First Solar in this $459 million offering.

09-21-2007

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Cravath, Swaine & Moore, LLP

SCOTT BARSHAY TO CHAIR AND GEORGE SCHOEN TO SPEAK AT PLI CONFERENCE ON M&A IN SAN FRANCISCO
Cravath partners Scott A. Barshay and George F. Schoen will speak at "Mergers & Acquisitions: What You Need to Know Now 2007", a two-day conference presented by the Practising Law Institute, to be held at the PLI Center in San Francisco.

Scott will Chair the program and speak on two panels. On October 11, he will participate in a panel discussion entitled "The Current Landscape: Recent Trends in M&A". Panelists will discuss the current climate for M&A and M&A financing, legal developments in the global and U.S. M&A markets, and trends in strategies and tactics. On October 12, Scott will participate in a panel discussion entitled "The Role of Corporate Counsel in M&A Transactions". Panelists will discuss how intense focus on proper corporate governance has spotlighted the unique importance of inside counsel to M&A activity, the critical perspective and understanding that inside counsel bring to a deal, and the special role played by the in-house law department, particularly in the important challenge of post-closing integration.

Also on October 12, George will participate in a panel discussion entitled "SEC Developments in M&A". Panelists will discuss how recent changes in the policy and pronouncements of the SEC are affecting M&A planning and execution, the future for regulation of hedge funds and private equity funds, developments in the merger proxy disclosure environment, the ability of shareholders to rely on representations made to acquirers in merger agreements, and other SEC hot button topics.

09-21-2007

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Bryan Cave LLP

Thirteen BC Lawyers Named ‘Lawdragon 500’ Leading Lawyers Finalists and Top Dealmakers
Thirteen Bryan Cave lawyers were finalists to the third annual Lawdragon 500 Leading Lawyers in America guide.

William Bavinger, James Cole, Jerry Hunter, Christopher Lause, Don Lents, Mary Mancini, Stanley Marcuss, Mary "Mimi" Moore, Craig O'Dear, Rodney Page, John Peirce, Lawrence Scarborough and Thomas Van Dyke were selected as finalists in what Lawdragon calls “the most prestigious distinction in the legal profession.”

Additionally, Christopher Lause, Don Lents and Craig O'Dear were listed in the summer edition of The Lawdragon 500 Leading Dealmakers. They made the list for their noted work on headline-making transactions, from M&As and securities transactions to public and private financings to real estate deals.

“The Lawdragon 500 is the ultimate guide to the best lawyers in the nation,” asserts the publication. Fewer than .01 percent of all lawyers in the U.S. will be named a member of the Lawdragon 500. Lawdragon's editorial staff conducts research and phones legal professionals to solicit their opinions about who the best lawyers are in the nation. They then combine this research with votes collected through online ballots to produce the Lawdragon 500 print magazine and online feature.

09-21-2007

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Piper Rudnick, L.L.P.

Five Corporate Partners Join DLA Piper in Chicago and New York
DLA Piper has announced that Steven V. Napolitano, Richard E. Ginsberg, Brendan P. Head, Christopher P. Giordano and Jason L. Booth have joined the firm’s Corporate and Securities practice group as partners from Winston & Strawn LLP. Head, Booth and Ginsberg join the firm’s Chicago office, Giordano joins in New York, and Napolitano will maintain offices in both Chicago and New York.

Napolitano will serve as co-chair of the U.S. Private Equity group for DLA Piper, adding additional depth to a group that Private Equity Analyst already ranks as third in the world by total number of private equity deals. Ginsberg will serve as co-chair of the U.S. Fund Formation group for the firm.

The arrivals represent the latest move in the continued expansion of DLA Piper’s global Corporate and Finance practice, coming just six months after Roger Meltzer joined DLA Piper from Cahill Gordon & Reindel LLP to lead an aggressive expansion of the firm’s Corporate practice globally. As global chair of the practice, Meltzer has been working to attract and manage significant engagements in New York and abroad, and to lead efforts to recruit leading corporate lawyers in major financial centers around the world.

“Continuing to expand the depth and visibility of what is already a nationally and internationally recognized Private Equity practice is a key part of our strategic plan. The experience and sophistication of Steve and Rick and the team’s work in representing major private equity funds and institutional investors enhances the quality of our platform and ability to expand client relationships globally,” said Meltzer. “Brendan, Chris and Jason are the type of experienced and dynamic transactional attorneys who are central to the continued growth and development of our Private Equity practice and the overall firm.”

“Consistent with DLA Piper’s vision to attract preeminent corporate and securities attorneys in the world’s leading financial centers, Roger continues to assemble an extraordinary team,” said DLA Piper’s Joint CEO Lee I. Miller. “The addition of this talented group is a coup for the firm and reflective of our commitment to continue to build our world-class Corporate practice.”

“Private equity plays an increasingly influential role in the global economy,” said Senator George J. Mitchell, chairman of DLA Piper. “This addition is a tremendous boost to our Private Equity practice, and further complements our growing capabilities across the sector.”

09-21-2007

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Piper Rudnick, L.L.P.

DLA Piper Ramps up U.S. Capital Markets Capabilities in Asia
DLA Piper has announced that Stephen Peepels and Gene Buttrill, leading corporate and securities lawyers with long track records in Asia, have joined the firm’s Corporate and Securities practice group as partners. The lateral hires mark a significant step in the continued expansion of DLA Piper’s global Corporate and Finance practice.

Stephen Peepels, who will head the U.S. capital markets practice in Asia, comes to DLA Piper from Jones Day, where he helped to develop a large Asian capital markets practice. His recent work includes representing UBS, JPMorgan and China International Capital Corporation in the U.S.$2.6 billion initial public offering by China Merchants Bank. He also represented Morgan Stanley, UBS and CICC in the U.S.$1.6 billion initial public offering of Fosun International, one of the largest initial public offerings in 2007. Steve has practiced in Asia for more than 10 years on financial transactions in Hong Kong, throughout Greater China and in Southeast Asia.

Gene Buttrill, who is fluent in Mandarin Chinese, joins from Simpson Thacher & Bartlett LLP. He has substantial experience representing investment banks on corporate finance transactions in Greater China. He has advised the underwriters and issuers on a significant number of SEC-registered offerings by foreign private issuers, and represented both PRC issuers and the underwriters in reorganizations and listings on the Hong Kong Stock Exchange, including the U.S.$3.3 billion China Shenhua Energy Company IPO. His recent debt offering experience includes the U.S.$1.0 billion high yield bond offering by CITIC Resources Holdings, the largest high yield offering ever from Asia.

Both lawyers have built their careers representing leading global investment banks in international offerings and have deep ties to Asia’s investment banking community. The arrival of the new partners comes approximately six months after Roger Meltzer joined DLA Piper from Cahill Gordon & Reindel LLP to lead an aggressive expansion of the firm’s Corporate and Finance practice in the United States and abroad. As Global Chair of the practice, Meltzer has been working to attract and manage significant engagements in New York and to lead efforts to recruit quality corporate lawyers in major financial centers around the world.

“The addition of these partners is a significant step in advancing our strategy to develop a leading global corporate and finance practice,” said Meltzer. “Steve and Gene bring vast experience with cross-border IPOs, and share strong ties to the world’s leading investment banks with whom we are actively working to forge deeper relationships around the world. We are thrilled to add these credentialed transactional lawyers to our thriving corporate practice.”

Nick Seddon, Asia Managing Partner added “we have been building a strong Hong Kong-based corporate team for several years, and have had great success as Hong Kong counsel on several large Hong Kong initial public offerings under the experienced leadership of partners Dr Liu Wei and Esther Leung. By adding lawyers with the depth of experience Steve and Gene have on the U.S. capital markets side, we position DLA Piper as a premier firm delivering integrated legal advice on public offerings in Hong Kong and the United States, and take advantage of the strong market for international capital markets transactions regionally."

09-21-2007

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McDermott Will & Emery

Greater Boston Legal Services Awards Boston Health Lawyer
McDermott Will & Emery is pleased to announce that the Greater Boston Legal Services (GBLS) will be honoring Firm associate Jerome "Jerry" Tichner Jr. for his work as co-chair of the 2007 GBLS Associates Drive, which raised in excess of $220,000. Mr. Tichner, who also acted as an Associates Drive co-chair during 2005 and 2006, will be recognized for his efforts at the GBLS Board meeting on Wednesday, September 26, 2007.

"We are proud of Jerry for all his commitments to the Greater Boston Legal Services. He has done a wonderful job of continuing the success of the Associates Drive while helping to improve the lives of those in the Boston community," commented Susan M. Cooke, partner-in-charge of the Boston office.

The Greater Boston Legal Services annual Associates Drive helps raise money from associates in law firms throughout Boston for the GBLS’ Family Law Unit. The GBLS Family Law Unit strives “to provide legal services to clients to help them achieve safety, stability and financial support, and through community work to empower clients and communities to have safe environments in which to live and raise children, free of poverty, violence and discrimination.” In order to achieve its goals the Family Law Unit provides free civil legal services, advice and referrals for legal and non-legal service, educates in matters of law, and collaborates with community-based service providers. GBLS provides legal assistance to low-income people in Boston and thirty-one additional cities and towns. For more information visit www.gbls.org.

Mr. Tichner is a member of McDermott’s Health Law Department based in the Boston office. He maintains a general health law practice, focusing on the representation of hospitals, health systems and other health care clients. In addition Mr. Tichner has experience representing pharmaceutical companies, durable medical equipment companies and medical device manufacturers. He regularly provides regulatory and transactional representation to such clients in connection with acquisitions, joint ventures, strategic affiliations, conversions to tax-exempt status, and other transactional matters.

09-21-2007

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