At the beginning of April, 3M, the nation's largest producer of the now infamous N95 mask, filed two lawsuits against companies it claimed were confusing and deceiving buyers by falsely associating 3M with the defendants and re-selling its N95 masks at "grossly inflated"1 prices. Such behavior, according to 3M, violates federal trademark law. The lawsuits, which were filed in the
3M has been successful. For instance, on
While these cases have raised questions about the extent trademark law protects a brand owner after it has sold its products into the stream of commerce, they also demonstrate how companies are addressing trademark violations in this time of global pandemic, as well as the public relations and marketing considerations accompanying those choices. By filing this lawsuit, 3M was able to focus attention on distasteful and illegal marketing practices, while simultaneously being seen as the one standing up to the companies fostering consumer confusion as to the source of its 3M N95 masks. For instance, not only do the complaints chronicle 3M's "Extensive Efforts to Assist 10 and its efforts to fight price gouging, but 3M also stated that any damages resulting from the suits will be donated to COVID-19 relief efforts.
3M is not the first company to recognize the positive public relations value of taking action against misleading marketing and advertising and misuse of its trademarks. However, the act of bringing a trademark suit with regard to price gouging may represent a new trend.
3M's efforts stand in contrast to the recent efforts by several companies to employ humor instead of the traditional cease and desist letter. For example, Bud Light employed a costumed medieval crier and a handwritten scroll in order to ask a
Given the seriousness of the global pandemic and the widespread price gouging at hand, humor is not likely an effective tool, nor would it send the proper message to other possible infringers seeking to trade upon 3M's fame and good will while price gouging. As the recent orders and multiple lawsuits demonstrate, an aggressive approach may be a necessary, and, more importantly, a successful way to protect the public.
At the end of the day, the suits filed by 3M are likely just the beginning. In a statement released on the same day 3M filed the first set of lawsuits, a company representative from 3M not only hinted there might be additional lawsuits on the horizon, but that lawsuits are just "'one of the many legal tools 3M is using to protect the public.'" While a lighter touch may be used effectively to address trademark violations in some cases, as companies continue to navigate through these uncertain times, public health and safety may require use of traditional cease and desist letters and complaints seeking injunctive relief as the weapons of choice.
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Footnotes
1 See, e.g., Complaint at 3, ECF No. 1, 3M Co. v.
2 Complaint, ECF No. 1, 3M Co. v.
3 Complaint, ECF No. 1,
4 Complaint, ECF No. 1,
5 Complaint, ECF No. 1,
6 Complaint, ECF No. 1,
7 Order Granting Motion for Temporary Restraining Order 14; and Ordering Defendants to Show Cause re Preliminary Injunction, ECF No. 18,
8 Order on Plaintiff 3M Company's Application for a
9 Findings of Fact and Conclusions of Law, at 13-14, ¶¶ 6-7, ECF No. 23, 3M Co. v.
10 See, e.g., Complaint at 9, ECF No. 1, 3M Co. v.
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