Counterfeit 3M N95 Masks Raises Trademark Infringement Concerns - Fordham Intellectual Property, Media & Entertainment Law Journal
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Counterfeit 3M N95 Masks Raises Trademark Infringement Concerns

Counterfeit 3M N95 Masks Raises Trademark Infringement Concerns

The COVID-19 pandemic has altered daily life in the United States and across the globe, and one of the most noticeable changes can be seen on the faces of millions of Americans. Masks are a simple layer of protection that have helped prevent the spread of infection, and they are crucial in the fight against COVID-19.1 The N95 respirator is the most common type of filtering facepiece respirator, and the mask can filter out at least 95% of airborne particles.2 For frontline healthcare workers, N95 masks are the mask of choice and the “gold standard” for protection.3 But with the increase in demand for N95 masks, comes an increase in counterfeiting. Homeland Security Investigations (HSI) agents in recent weeks have seized approximately 11 million counterfeit 3M N95 masks that were en route to various consumers, including medical facilities.4

3M is one of the largest producers of the N95 mask,5 and the rise in counterfeit masks is a huge point of concern for the company. Not only do the fake masks present risks to frontline healthcare workers who use them6 , they also present numerous issues with violations of 3M’s intellectual property rights. 3M has filed dozens of lawsuits7 to fight against the counterfeit products, alleging trademark infringement and trademark dilution, among other claims.8 The crux of 3M’s many claims centers on the unauthorized use of the 3M name and registered trademarks in the sale of counterfeit masks.9 Courts have granted 3M’s motions for preliminary injunctions and temporary restraining orders to prevent counterfeit N95 mask sales. 10 When granting 3M’s motions, courts weighed the “likelihood of success” of 3M’s trademark claims and determined that the company is likely to succeed on the merits on its federal trademark infringement claims.11

The issue of counterfeit N95 masks illustrates the importance of trademarks and the trust consumers place in the strong marks of global brands. Counterfeiting takes advantage of this trust, and in situations like counterfeit mask sales in the pandemic, leads to much greater harms that go beyond simply damaging brand reputations and extends to matters of public health.

 

 

 

 

 

 

 


  1. See Guidance for Wearing Masks, Ctrs for Disease Control & Prevention (last updated Feb. 18, 2021), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover-guidance.html#evidence-effectiveness [https://perma.cc/ZM4B-X4LJ].

  2. NIOSH-Approved N95 Particulate Filtering Facepiece Respirators, Ctrs for Disease Control & Prevention (last updated Jan. 11, 2021), https://www.cdc.gov/niosh/npptl/topics/respirators/disp_part/N95list1.html [https://perma.cc/H9KQ-4YH4].

  3. See Colleen Long, US Govt Seizes Over 10M Phony N95 Masks in COVID-19 Probe, Associated Press (Feb. 17, 2021), https://apnews.com/article/us-govt-seizes-10m-phony-n95-masks-e31fb7965cb831db4fe22fe4324871f5 [https://perma.cc/DH8B-HRH6].

  4. DHS Prevents Millions of Counterfeit N95 Masks from Reaching Hospital Workers, First Responders, U.S. Immigr. & Customs Enf’t (updated Feb. 18, 2021), https://www.ice.gov/news/releases/dhs-prevents-millions-counterfeit-n95-masks-reaching-hospital-workers-first [https://perma.cc/7T3W-98FX].

  5. Long, supra note 3.

  6. See Counterfeit Respirators / Misrepresentation of NIOSH-Approval, Ctrs for Disease Control & Prevention (last updated Feb. 18. 2021), https://www.cdc.gov/niosh/npptl/usernotices/counterfeitResp.html [https://perma.cc/Z3MU-U6XK].

  7. See Jennifer Mayerle, ‘Not a Problem That Is Going Away’: 3M Fighting to Keep Counterfeit N95 Masks Off The Frontline, CBS Minn. (Feb. 15, 2021, 10:05PM), https://minnesota.cbslocal.com/2021/02/15/not-a-problem-that-is-going-away-3m-fighting-to-keep-counterfeit-n95-masks-off-the-frontline/.

  8. See 3M Co. v. Nationwide Source Inc., No. 20-CV-2694 (WMW/KMM), 2021 WL 141539, at *1 (D. Minn. Jan. 15, 2021).

  9. Id. see also 3M Co. v. Starsiak, No. 20-CV-1314 (SRN/TNL), 2020 WL 3566718, at *1 (D. Minn. June 26, 2020); 3M Co. v. Legacy Med. Supplies, LLC, No. 20-CV-1371 (ECT/KMM), 2020 WL 4046007, at *1 (D. Minn. July 14, 2020)

  10. Nationwide Source, 2021 WL 141539, at *8; Starsiak, 2020 WL 3566718, at *8; Legacy Med. Supplies, 2020 WL 4046007, at *1.

  11. Nationwide Source, 2021 WL 141539, at *2; see also Starsiak, 2020 WL 3566718, at *6-7.

Jeana Thompson

Jeana Thompson is a second-year J.D. candidate at Fordham University School of Law where she is a staff member of the Intellectual Property, Media & Entertainment Law Journal and the Treasurer for the Fordham Law Student Veterans Association. Jeana holds a B.A in Film Studies from Vanderbilt University.