Inside Track: American Red Cross
The iconic scarlet emblem of the Red Cross has enjoyed protection under the Geneva Conventions for over 150 years. Allison Leader, IP counsel for the American Red Cross, explains how this dovetails with more mainstream instruments and outlines the challenges of protecting IP rights in times of crisis
When Hurricane Sandy struck the eastern seaboard of the United States in October 2012, it destroyed thousands of homes and left millions without power. Blanket media coverage in the following days and weeks captured the aftermath of the devastation and the subsequent aid effort. The American Red Cross was a ubiquitous presence in this rolling footage, as more than 17,000 trained workers embedded themselves in affected communities to help the victims weather the crisis.
When a major disaster occurs on US soil, the American Red Cross is never far behind. Founded in 1881, it has long been synonymous with emergency assistance and disaster relief from coast to coast. It boasts a nationwide network of 650 chapters and over 500,000 volunteers; and with annual reported revenues of some $3.5 billion, it is the largest of all 189 Red Cross and Red Crescent national societies around the world.
Figure 1: Emblems of the International Red Cross and Red Crescent movement
The Red Cross and Red Crescent movement has its origins in the Geneva Conventions, a series of treaties first ratified in 1864. The initial aim was to provide enhanced medical services in wartime; among other things, medical personnel, vehicles and establishments bearing the Red Cross emblem benefited from protected status, with any attacks on them deemed a war crime under international law. However, national Red Cross societies soon sprang up to expand its purview to emergencies beyond the battlefield, such as natural disasters and epidemics. As this network grew, the International Federation of Red Cross and Red Crescent Societies (IFRC) was established in 1919 to coordinate their efforts. Every national society uses one of three emblems – the cross, the crescent or the crystal (see Figure 1) – and the Geneva Conventions state that each is obliged to protect its chosen emblem in the jurisdiction in which it is based.
In order to meet this obligation, the branding of the American Red Cross enjoys legislative protection under 18 US Code § 706. The organisation has relied on the statute to enforce its IP rights since it was first codified in 1900. However, with the dawn of the internet age, it became clear that additional protection was necessary, and in 2002 the American Red Cross filed its first trademark for its name and emblem.
Joining the fray
The decision to file was a logical one, suggests counsel of IP and transactions Allison Leader, who took up the post in 2013. “We have found that people better understand trademark registrations,” she says. “Each national society has to rely on the statute that was passed in their country or else seek additional trademark protection. We have found that having both together offers two arrows in our quiver that help us to accomplish our brand protection goals.”
Leader herself, is no stranger to unique IP challenges: in her previous role as assistant general counsel at the Associated Press, she helped to shape IP strategy in an industry undergoing a paradigm shift. During her 12 years at the company, the news media evolved from the traditional print and television channels to encompass new digital technologies, throwing up countless new IP issues in the process.
“The entire industry was trying a host of different business models as it faced up to a whole new world,” she recalls. “The more traditional media businesses, such as newspapers, had been around for a long time and had been making a lot of money, and they suddenly had to rethink the way they did things. A real focus in my time there was adapting to the changing model of licensing and how to use our online licence agreements to protect content that people did not understand or expect to be protected by intellectual property. The AP, as a gatherer of news and with so many news organisation members, drove that push into the future.”
Although not an official tax-exempt charity, the AP is a not-for-profit membership cooperative, meaning that any revenues are ploughed back into the organisation. Thus, when Leader joined the American Red Cross at the end of 2013, she brought with her a nuanced understanding of this operational matrix, matched with numerous key transferable skills – especially surrounding content creation and licensing. The most significant similarity between the two organisations, she suggests, is that their value is “explicitly tied to their brand and reputation”. “You don’t get many opportunities as an IP lawyer to change areas so fundamentally while also being in a space where there are components that were transportable into this context,” she adds.
The IP division that Leader heads today is a lean two-person outfit, which sits within the general counsel’s office. A key priority for the team has been cultivating close ties with departments across the organisation, in a bid to spread awareness of the IP issues that colleagues might encounter. “We don’t want to rely on someone who has been at the organisation for a long time to understand the IP stipulations and institutional knowledge,” Leader explains. “This has led to the development of personalised IP guidelines about the legal issues that we face, both as an organisation and by each specific department.”
There is also regular collaboration with their counterparts at the other national Red Cross societies around the world. “We work together to identify issues that are having an impact in our country, but actually originate in another country, and vice versa,” continues Leader. “We will often help national societies when they have discovered that a nefarious entity is in the United States and we will do what we can under US laws to help with that situation. The organisation that I have the most communication with is probably the Canadian Red Cross: our shared border means there are both items in commerce that we are trying to stop and different organisations that may communicate to people in both countries.”
Unsurprisingly for an organisation that is primarily funded by donations, the IP team attempts to handle most enforcement and prosecution issues in-house, with external counsel used sparingly in order to save on spend. “We have grandmothers who donate $5 to us, so we try to be incredibly sensitive to what we spend on IP protection measures generally,” Leader stresses. “If we are unsuccessful in being able to do everything internally and there is something of significance, then the next step is to move to outside counsel to help us. We only use them in the most efficient way possible, because we are very aware that every dollar that we are spending is a dollar that is potentially not being used for one of our programmes.”
Given the “exceedingly limited budget” that she has to work with, Leader seeks out firms that are flexible and provide total transparency in their rates: “I’ve found that firms understand our need to contain the legal costs and that we have to use their resources efficiently, and most are willing to provide discounts to non-profits. Ultimately, we are a well-known non-profit brand and some law firms like to have clients that they feel good about – so in that respect, it helps us.”
Grey skies gathering
One scenario in which the support of outside counsel is inevitably required is during so-called ‘grey-sky periods’ – the name given to Category 3 disaster events when the American Red Cross is conducting large-scale aid efforts. In the days, weeks and even months after a crisis, every resource of the organisation – including legal – is stretched to the limit.
We must take very seriously the need to properly license everyone who is using our mark – even those who are fundraising following a major disaster
“The trademark work ratchets up and it’s an all-hands-on-deck situation,” says Leader. “We pull in lawyers from other areas of the organisation, as well as working with outside counsel, because licensing activities go way up and, as a trademark owner, we must take very seriously the need to properly license everyone who is using our mark – even those who are fundraising following a major disaster. We want to make sure that everyone who wants to fundraise uses proper brand standards and marks, as well as the correct solicitation language for a particular crisis event. Our focus is to make sure that everything is clear to the given public. Therefore, we have made sure we have an efficient back end to ensure it is as easy as possible for those that want to fundraise and for the IP team to manage those requests.”
This back-end support includes user-friendly fundraising templates made available on the American Red Cross website. These are uniquely created for every grey-sky period and cover various types of fundraising activity, from bake sales to workplace events. Once a fundraiser has filled in the request form, it is added to a queue which is then reviewed by the grey-sky IP team; at these times Leader’s core two-person IP division is supplemented by around six other attorneys and four paralegals from other departments, who are drafted in to help triage requests. “Thankfully, the public fundraising requests can be processed by anyone who is reasonably trained in reviewing contracts,” she explains. “But if a corporation puts in a fundraising request, we have to bump it out of the queue and handle it separately. Corporate fundraising requests tend to be more complex, in terms of trademark law and the issues involved with cause marketing due to a commercial entity wanting to associate our brand with a product or service. So those requests will be handled by a different set of attorneys and will also be reviewed by the marketing department.”
And the licensing issues reach a whole new level of complexity when online platforms are involved. One recent example was a campaign hosted on Amazon and iTunes to raise funds for aid relating to the migrant crisis in Europe. While users saw a simple, eye-catching fundraising banner on each of the respective platforms, the work behind the scenes was sophisticated and intense. “Crisis and disaster fundraising often have very specific cycles about when you need to fundraise and how you reach out to get the money you need for the recovery effort,” Leader explains. “The internationalisation of some online platforms is a wonderful opportunity in this regard, and those that are interested in working to help the Red Cross and Red Crescent fundraise for those activities also want to be very fast moving. In order to move quickly, there are many issues involved – especially related to branding and trademarks. Technically, these activities involve getting rights from all of the national societies that want to get involved, while also being in compliance with the laws around fundraising in each of those jurisdictions. Thankfully, we have managed to come up with a way for international corporate donation partnerships to be done in an expeditious manner and our team is centrally involved in that process.”
Controlling and monitoring trademark use by fundraising partners and volunteers alike has become increasingly important in recent years – not least due to the Ninth Circuit’s 2010 ruling in FreecycleSunnyvale v The Freecycle Network. The case involved ‘naked licensing’ – uncontrolled use – of the brand of Arizona-based non-profit Freecycle, leading to a determination that it had abandoned its trademark. “We, and all not-for-profits, are very sensitive to the Freecycle case,” says Leader. “It means it is not just the nefarious folks that we are worried by, but also the people who are trying to do good.”
When people see something that doesn’t smell right, they come to us
As Leader acknowledges, misuse of the Red Cross emblem is not always inadvertent: unfortunately, some ‘nefarious folks’ will inevitably seek to capitalise on a crisis and the American Red Cross can often find itself a target. When fraudulent fundraising is discovered, especially during a disaster, the IP department will pass on the matter to the organisation’s office of investigations, compliance and ethics; in the most egregious instances the US Department of Justice and state attorneys general will also be involved. Leader reveals that a “significant percentage” of these cases are discovered by the general public and reported via a page on the American Red Cross website or a public inquiry hotline. “This means we have eyes in a lot of different places,” she adds. “We are such an old organisation with so much goodwill that when people see something that doesn’t smell right, they come to us.”
What is the most challenging aspect of your job?
We are a mission-driven non-profit that has a dispersed structure because of our local disaster recovery efforts. That means a huge challenge is figuring out how to work with all of these people who just want to do good and get their relief programmes live without slowing them down. I need to do this by communicating effectively at a local level and making sure they understand the complex legal issues in regards to maintaining brand standards, proper licensing and the necessary language requirements.
What is the most rewarding aspect of your job?
I think intellectual property is a fascinating area of the law. It has juicy, meaty issues and I love being able to do that while working in the context of a mission-focused organisation. It brings together IP challenges and logistical challenges with the knowledge that what I’m doing has a real impact.
Who or what has been the greatest influence on your career?
Certainly George Galt, who hired me as a colleague at the Associated Press and trained me as an in-house lawyer. Then, more generally, the many strong women in my life: everyone from my mum, my sister, my aunt, my cousins and my friends to the really strong network of women that I’ve come into contact with through where my children are educated. We can lean on each other, and when I was thinking about making this change in my career, I was able to talk to them about it. Of course, my husband and two boys are a huge influence as well. They put up with my career and occasionally spot unauthorised uses of the Red Cross logo and tell me about them!
If you weren’t a lawyer, what career path would you choose?
I would have loved to have owned a small independent bookstore. While my friends were waitressing during high school, I was working in bookstores and I really love the environment.
What’s your favourite book?
My favourite is Marilynne Robinson’s Gilead. It’s a true story about America and about the spirituality within people’s lives. I’ve read it over and over again, and each time I find another meaning within it. I find the prose so beautiful and the story completely engaging.
What hobbies do you have outside of work?
I love biking and hiking, and at times have taken part in a yoga practice. I also like gardening and skiing, and I have a morning run with my neighbour three or four days a week.
What is your favourite holiday destination?
In the past few years we’ve been going skiing in Big Sky, Montana. It’s a little off the beaten path and there aren’t too many flights, so you really need to make an effort to get there. It’s a low-key environment and it’s a place where we go as a family to relax.
If you could retire anywhere in the world, where would you choose?
I would definitely spend part of my time in Washington DC, because I do love living here. I also love the mountains. A dream of mine is to live in a place like Vermont, Montana or Colorado – somewhere with access to the woods and mountains.
If you could go back in time and give advice to your 18-year-old self, what would it be?
Don’t be afraid of making changes and don’t be afraid to ask people for favours in a professional and educational context. You should also never regret helping someone, even if it feels awkward to offer help. I’ve learned over time to always get over one’s own personal awkwardness to earnestly reach out to someone.
What advice would you give to someone starting a career in IP?
Finding opportunities and leaping at them when they happen is the best thing you can do. Don’t forget that there are great organisations – such as INTA and the Association of Corporate Counsel – that offer learning and networking functions. You have to remember that people in this industry are generally happy to help out; and also being a person who can help out is something that adds to our positive economy.
Into the blue
The approach to accidental misuse, by contrast, is considerably more measured – especially since it is often due simply to a lack of awareness about how the mark can and should be used. One recurring example that Leader highlights relates to clipart services, which are often used to obtain free or extremely low-cost images.
“When conducting enforcement activities, we sometimes find potentially infringing use of the emblem and hear in response, ‘This is a clipart image – I didn’t know I wasn’t allowed to use this,’” she says. “This is an issue both on free clipart services that only offer personal use rights and on paid-for clipart services that offer commercial use licences. You don’t see these clip art services selling images with the Nike swoosh, for example; but it seems to be an issue that we are facing more than most recognisable brands. We are currently conducting education sessions with clipart providers in the hope of resolving this issue.”
The non-profit perspective on the gTLD roll-out
The ongoing generic top-level domain (gTLD) roll-out has been a significant resource burden for many non-profit organisations since the process began in 2013. For the national societies of the Red Cross, however, that burden has been eased somewhat by the automatic block of associated terms at the top level and second level in all of the new gTLDs. “My predecessor, Debbie Hughes, had the original thought of working with ICANN to see what protections we could attain,” explains counsel of IP and transactions Allison Leader. “She knew it could ease our online enforcement workload and she was absolutely correct. When it was subsequently understood what the international effect of these ICANN protections would be, the decision was made to have it centrally coordinated by the International Federation of Red Cross and Red Crescent Societies (IFRC).”
This automatic protection for the names of the Red Cross national societies has been tremendously helpful, but Leader doubts whether the same protections would be available to other non-profits: “No matter how much I would like there to be automatic protection for all registered non-profits, I don’t think that is something ICANN will feel it is able to do. The only reason why it was offered to the Red Cross and Red Crescent movement was because of the international nature of the Geneva Conventions. This means that for other non-profits, the strategy should be to set up a strong online presence that you communicate to the public and to spend your budget on the new gTLDs only when you absolutely need to. Ultimately, non-profits can’t be like the big corporates and register huge swathes of domains across all these new gTLDs – you have to let that strategy go, because it is not feasible.”
Another option for stronger online protection is to register for a ‘.brand’ in the next round of applications. For the Red Cross, that decision would be made by the IFRC; but Leader suggests that the prospect is unlikely. “We have not seen a need to consider getting a top-level ‘.redcross’ domain for our activities,” she says. “If it is only for the sole purpose of controlling one’s presence, it is a huge cost outlay and I’m not sure it makes sense for non-profits. Furthermore, the more online spaces you have, the more confused people will get.”
While the cost of a top-level domain for an individual charity is significant, Leader encourages further dialogue with ICANN in terms of a potential non-profit online space. “People do associate the ‘.org’ space with non-profits and that is helpful, but that non-profit restriction no longer exists and it is now open to anybody. If ICANN wanted to create a pro bono space essentially, where only registered non-profits could register domain names within that space at an extremely discounted rate, that would be great. For now, it would be great if people continued to lobby ICANN for these further protections.”
The team is just as vigilant in ensuring that the emblem is used correctly in fictional scenarios. “Hollywood likes to insert the Red Cross into movies or TV shows when relevant, and we work to make sure those are accurate representations that do not cause misunderstanding internationally,” continues Leader. “If a depiction of our work were to create a negative understanding of the Red Cross, even in a fictional context, I can imagine those clips being chopped up and made available over the Internet in ways where people would not understand that they are fictional. That could lead to direct harm or death to people who are working under those emblems.”
Given the potentially grave implications, Leader has partnered with the American Red Cross celebrity engagement team to raise awareness among movie studios, television networks and independent production houses. The result is a win/win for both parties, she suggests: “Figures in the entertainment industry know that we can add value to their productions because of the authenticity that our emblem can provide to their production. This is a positive for us too, because we want to educate the public about the Red Cross emblem and having it represented in TV or film – as long as it’s accurate – can help people understand.
“For a TV production, there may be a scene in the script that involves some kind of disaster situation,” she elaborates. “The production team may want to depict the Red Cross in the background of the scene and maybe use one of our vehicles too. We will work with them from a marketing and brand protection perspective; and we have found that because we are willing to put in the time to make sure the production is accurate, they are very happy to engage with us more. In fact, they may even develop a greater role for the American Red Cross in that scene or allow us to conduct education efforts in association with the release of the TV programme.”
We’re working here because we really believe in the mission
This spirit of collaboration likewise characterises the IP team’s relationships with their counterparts across the entire US non-profit sector. Ongoing dialogue is facilitated in part by the “very active” INTA Not-for-Profit Sub-committee and by the Association of Corporate Counsel’s non-profit group. “Yes, there is an aspect of rivalry,” acknowledges Leader; “the American Red Cross probably competes with certain not-for-profit organisations for fundraising dollars. But at the same time, the IP lawyers at all of these organisations communicate frequently and we have incredible respect for each other’s mission.”
Indeed, respect for and dedication to the American Red Cross mission remains Leaders’s driving force in her role – especially in the intensity of a crisis. “No one is working for the American Red Cross because they pay so well – we’re working here because we really believe in the mission,” she concludes. “When I joined, I knew about and understood the mission; but to witness first-hand how important that is during a grey-sky period, and to see how everyone really steps up to the plate – it really elevates the meaning in my work.”