3M stumbles in litigation strategy over COVID-19 masks
Multinational 3M has suffered a setback in its litigation campaign against the distributors of N95 masks after a US judge found in favour of arguments made by one of its opponents.
US District Court Judge Richard Jones handed down an order on Wednesday, December 8, at the US District Court for the Western District of Washington holding that “it is plausible that 3M knew at the time it filed this lawsuit that defendants had not committed any of the acts of trademark infringement that 3M alleges”.
3M provides healthcare products and personal protective equipment (PPE), including N95 respirator masks.
Last year, the company filed a spate of lawsuits against many PPE manufacturers over allegations that the companies had grossly inflated the price of N95 masks at the height of the COVID-19 pandemic, and infringed 3M’s trademarks.
In July, 3M sued healthcare manufacturer AIME, alleging that it led potential customers to believe that its sale would involve 3M, when it was not authorised to use the trademarks in its marketing materials.
The manufacturer further asserted that AIME attempted to sell 3M masks at inflated prices of $2, $3, or $6.95 per mask, compared to 3M’s list price of $1.27 per mask.
AIME filed counterclaims against 3M in October 2020 holding that the multinational filed its lawsuit as part of “a multifaceted publicity campaign to control the damage” levied by the then US President Donald Trump when he accused 3M of placing “profits over patriotism during the global pandemic”.
AIME also alleged that 3M filed this lawsuit “for the ulterior purpose of driving out competition in the US mask market”.
Since the start of the pandemic, 3M has investigated thousands of cases of fraudulent N95 sales, leading to multiple lawsuits, injunctions, settlements and restraining orders.
According to AIME’s counterclaim, 3M filed 18 lawsuits in 10 US states and Canada.
But last week, Judge Jones denied 3M’s motion to dismiss AIME’s assertion that the multinational had contravened the Washington’s Consumer Protection Act (CPA).
He found that such a claim could be supported if a party routinely files lawsuits as part of its business and that AIME had sufficiently pleaded this argument.
Judge Jones wrote: “These claims adequately allege the public interest element of defendants’ CPA claim.
“Accepting all of defendants’ allegations as true, 3M has a business practice of filing lawsuits against its competitors to drive out competition. That 3M had filed over a dozen of such lawsuits demonstrates that other competitors ‘are not only likely to be injured in the same manner, but have experienced such injury’.”
The court also denied 3M’s motion to dismiss AIME’s counterclaim for malicious prosecution, abuse of process, and its tortious interference claim.
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