3M Invokes Trademark Law in Price Gouge Suit

3M filed a trademark infringement complaint Friday against Performance Supply, LLC, claiming that the company used “3M” trademarks in a price-gouging scheme impacting N95 respirator masks, which are considered a key component of personal protective equipment needed to slow the spread of COVID-19. The case is being held before the New York Southern District Court.

Performance Supply is a New Jersey limited liability company accused of using 3M’s recognizable trademark to sell counterfeit N95 masks. 3M alleges that Performance Supply sent a quote to New York City’s Procurement Office and offered to sell two models of 3M-branded N95 masks for $6.05 and $6.85, respectively. These prices are heavily inflated; the masks usually sell for about $1.50 per unit.

The complaint alleges that attached to the formal quote was a technical specification sheet featuring the 3M trademark in the upper lefthand corner, as though it were an official 3M document. The presence of 3M’s trademark in both the formal quote and the technical specification sheet allegedly “caused New York City officials to mistakenly believe that [Performance Supply] was an authorized distributor of  [3M’s] products and/or otherwise had an association or affiliation with [Performance Supply] and its products.”

3M is a well-known provider of goods, including household, industrial, and medical supplies. Its N95 masks are used by medical professionals and the general public to defend against airborne illnesses like COVID-19. The complaint claims that 3M recently “invested the necessary capital and resources to double its global annual production of 1.1 billion 3M-brand N95 respirators.” It continues by asserting, “What 3M has not done, though, is increase its prices.”

As a result of Performance Supply’s alleged fraudulent activity, 3M seeks an award for damages and full accounting for the sale, manufacture, and distribution of the masks in question. Mayer Brown filed the suit on behalf of 3M.