[ On Carrots, Crosses & Trademark Protection ]

Forget the color of your parachute – what color is your carrot? In another age, it might have arrived on your plate in shades of purple, white, red, or yellow. But chances are your carrot is orange. They were grown that way...as part of a failed branding exercise.

In the 1500s, patriotic Dutch growers hybridized red carrot varieties with a mutant yellow strain from North Africa, supposedly in order to honor the Dutch royal family, the House of Orange. For a time, the orange Dutch roots were distinctive, an indisputable identifier of the products’ region of origin.

However, the Dutch were victims of their own success. The new orange carrot was sweeter in taste, did not turn mushy in soups and stews, and was healthier besides (due to the presence of beta carotene, which provided the rich orange color). Soon the new carrots were popular throughout Europe and grown to the exclusion of other strains. The original significance of their color, as a mark of a Dutch-grown product, was lost. Orange carrots became generic.

This illustrates one of the pitfalls of building a successful brand: a brand can become too successful. When customers equate a specific brand with the entire class of a product, the brand risks becoming genericized. Companies often go to great lengths to avoid this from happening: Google has declared war on “googling,” Xerox on “xeroxing,” and Kleenex would still prefer that you reached for a Kleenex@ Brand Tissue rather than just a Kleenex.

This sounds silly at first, but our language is littered with former trademarks that have fallen into the public domain: aspirin, cellophane, jungle gym, kitty litter, spandex. Even dictionaries themselves aren’t immune; legally, anyone can slap “Webster’s” on the cover. If a trademark is not vigorously protected, it ceases to be a trademark. This is a critical mistake for companies, because it opens the door to copycat competitors, shoddy replicas, and all kinds of misuse and abuse. If anyone can use your brand identity,then you simply don’t have one.

Hence the pickle Johnson & Johnson found itself in recently, when it was forced to sue one of the world’s most respected disaster relief organizations. For over a century, J&J and the American Red Cross have shared the red cross logo. (Despite a long tradition of red cross symbols in Europe, in the U.S. that particular icon is a J&J trademark predating the Red Cross and used by them with permission.) But recently, the Red Cross began licensing that image to J&J’s competitors. J&J sued to protect its trademark, despite knowing full well the public relations firestorm it would have to weather. The firm had no choice: in the murky world of trademark law, a trademark must be defended or risk being lost entirely.

Interestingly, while stories in papers like The New York Times and USA Today originally cast J&J as the villain, Jack Neff of Advertising Age rightly points out that the Red Cross may be the greater offender – for instance, spurning J&J’s offers at mediation with a mediator of the nonprofit’s choice, and instead lashing out publicly at the “obscene” behavior of a firm that has donated $5 million dollars to the Red Cross over the past three years. (That’s $2 million more than the offending licensing deals were worth, Neff goes on to note.)

Intangible assets, trademark protection, and brand identity matter – in terms of share of mind and dollars and cents. While this was never a battle J&J would have wanted, it is one that trademark laws compel the firm to fight. Since the Red Cross refused all proffered carrots, Johnson & Johnson had no choice but to resort to the stick.