3M price-gouging case ‘crumbles like cookie’, says accused company
A trademark infringement complaint filed by 3M is “short on ultimate facts and long on inflammatory, derogatory, and conclusory assertions”, according to the company accused of price-gouging in the suit.
Amid the COVID-19 pandemic, 3M has begun and expanded a litigation campaign, filing a series of lawsuits against companies accused of reselling N95 masks at inflated prices.
In mid-April, 3M sued Orlando-based Geftico at the US District Court for the Middle District of Florida, accusing Geftico of using the 3M trademarks to deceive a government agency into thinking that it was an authorised distributor.
According to the claim, Geftico contacted the division of strategic national stockpile (DSNS) at the Centers for Disease Control and Prevention with an offer to sell various personal protective equipment, including 3M brand masks.
3M then accused Geftico of using its trademarks in a PowerPoint presentation, which purported to offer to sell 15 million 3M-brand N95 masks at more than 500% above 3M’s list price.
At the end of April, the court granted 3M a temporary restraining order to stop Geftico from misusing 3M’s trademarks.
Late last week, Geftico hit back, asking the Florida court to dismiss the complaint and alleging that 3M was rushing to file the suit, alongside its other price-gouging suits, to “take the heat off” itself for “the debacle of selling US-manufactured respirators to Canada and Latin America rather than to the US”.
Geftico added: “Upon a careful review of the complaint, there are a few tell-tale signs that it was drafted and filed in haste without paying careful attention to the contents of the exhibits attached to the complaint, including allegations that Geftico sent a ‘smoking gun’ email even though, as reflected on the face of the email, Geftico did not send it.”
In its attempt to dismiss the complaint, the Floridian company said that “after the elimination of all of the self-congratulatory fluff and sound bites to placate the media, 3M’s case crumbles like a cookie”.
Geftico claimed that it had never offered to sell N95 masks itself and was instead representing other companies.
The Floridian company also argued that 3M’s trademark infringement claims failed because, under the “first sale doctrine”, an independent dealer may use a manufacturer’s trademark to re-sell that brand of good.
“Based on these facts, 3M’s position is essentially akin to saying that an eBay seller offering to sell Nike Air Jordan sneakers (even above original list price) dilutes Nike’s marks by such resale. On its face, such a position is patently absurd and would actually be injurious to commerce,” said the suit.
Geftico has asked the court to dismiss the case and award it such other relief that the court deems just and equitable.
A spokesperson for 3M said its complaint alleges in detail how Geftico used 3M’s name and trademarks multiple times to try to sell nonexistent N95 respirators at vastly inflated prices, and then falsely blamed 3M for Geftico’s price gouging.
“Geftico’s behaviour is not only deplorable, it is also unlawful. If Geftico does not agree to stop its trademark infringement and false and misleading conduct towards 3M, then 3M looks forward to its day in court with Geftico,” added the spokesperson.
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