Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 1 of 56 Page ID #:1
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`KEVIN C. MAYER (State Bar No. 118177)
`kevin.mayer@nortonrosefulbright.com
`NORTON ROSE FULBRIGHT US LLP
`555 South Flower Street
`Forty-First Floor
`Los Angeles, California 90071
`Telephone: (213) 892-9200
`Facsimile:
`(213) 892-9494
`kevin.mayer@nortonrosefulbright.com
`
`Christopher Weimer (pro hac vice forthcoming)
`cweimer@pirkeybarber.com
`PIRKEY BARBER PLLC
`1801 East 6th Street, Suite 300
`Austin, Texas 78702
`Telephone: (512) 322-5200
`Facsimile:
`(512) 322-5201
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`Attorneys for Plaintiff 3M COMPANY
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
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`3M COMPANY,
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`
`
`Plaintiff,
`
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`v.
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`KM BROTHERS INC., KMJ
`TRADING INC., SUPREME
`SUNSHINE, INC., MAO YU, and
`DOES 1 – 10,
`
`
`
`Defendants.
`
`Case No. 2:20-CV-05049
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`COMPLAINT FOR
`TRADEMARK
`COUNTERFEITING,
`TRADEMARK INFRINGEMENT,
`UNFAIR COMPETITION,
`TRADEMARK DILUTION, AND
`FALSE ADVERTISING
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`DEMAND FOR JURY TRIAL
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`Plaintiff 3M Company (“3M”) alleges as follows against KM Brothers, Inc.,
`KMJ Trading Inc., Supreme Sunshine, Inc., and Mao Yu (collectively,
`“Defendants”), as well as any presently unknown pseudonyms, affiliated entities, or
`persons acting in concert with Defendants (“Does 1 – 10”):
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 2 of 56 Page ID #:2
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`INTRODUCTION
`I.
`This lawsuit is brought to further 3M’s efforts to combat the
`1.
`exploitation of consumers during the COVID-19 global pandemic. Defendants
`operated an illegal scheme to advertise and sell counterfeit, damaged, deficient, or
`otherwise altered respirators to unwitting customers. Defendants falsely advertised
`these products with 3M’s famous trademarks, trading on 3M’s brand and reputation
`for products that consumers around the world trust for their superior quality and
`reliability. Defendants further engaged in price-gouging and other unfair sales
`techniques, such as bait-and-switch tactics, in order to take advantage of consumers
`in need of personal protection equipment (PPE) to safeguard their health.
`3M has filed suit to shut down entirely this unlawful activity, protect
`2.
`consumers from serious harm, and protect their names and brands from being
`associated with defendants’ unlawful and unethical efforts to profiteer from the
`pandemic. Any damages awarded in this case will be donated by 3M to charitable
`COVID-19 relief efforts.
`Throughout its history, 3M has been providing state-of-art, industry-
`3.
`leading scientific and medical products to consumers throughout the world under its
`famous 3M name and trademarks. Based on this longstanding, continuous use,
`consumers associate the 3M trademarks uniquely with 3M. Now, more than ever,
`consumers are also relying on the famous 3M name and trademarks to indicate that
`the products offered thereunder are of the same superior quality that consumers
`have come to expect over the past century. This is especially true with respect to
`3M’s numerous industry-leading healthcare products and PPE, including 3M-brand
`N95 respirators.
`Healthcare professionals and other first responders are heroically
`4.
`placing their health and safety on the line to battle COVID-19. To assist in the
`battle, 3M is working around the clock to supply healthcare workers, first
`responders, and critical infrastructure operators with millions of 3M-brand
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 3 of 56 Page ID #:3
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`respirators. Beginning in January, 3M began increasing its production of 3M-brand
`respirators, doubling its global output to a rate of 1.1 billion per year, or 100 million
`per month. This includes 35 million respirators per month being manufactured and
`distributed in the United States, or more than 1 million respirators per day produced
`in the U.S. for use in the fight against COVID-19. 3M also is investing capital and
`resources to enable it to double its respirator production capacity once again, to 2
`billion globally before the end of 2020. In the United States alone, 3M plans to be
`producing respirators at a rate of 50 million per month by June 2020, and at a rate
`of more than 95 million per month by October 2020. And to supplement its U.S.
`production, 3M also has announced a plan to import 166.5 million 3M-brand
`respirators from 3M’s production facilities overseas. In the United States, 90
`percent of 3M’s respirators are going to healthcare and public health users, with the
`remaining deployed to other critical industries such as energy, food and
`pharmaceuticals. The U.S. distribution of 3M-brand respirators is being
`coordinated with the Federal Emergency Management Agency, which is basing
`allocation decisions on the most urgent needs.
`The demand for 3M-branded respirators has grown exponentially in
`5.
`response to the pandemic, and 3M has been committed to seeking to meet this
`demand while keeping its respirators priced fairly. 3M is working with customers,
`distributors, governments, and medical officials to direct 3M supplies to the places
`where they are needed most. Importantly, 3M has not increased the prices it
`charges for 3M respirators as a result of the COVID-19 outbreak.
`In the midst of these efforts by 3M and the global health community to
`6.
`respond to the pandemic, certain bad actors have sought to exploit the crisis and
`prey on innocent parties through a variety of scams involving 3M N95 respirators
`and other health-related products in high demand. These scams include the sale of
`counterfeit, damaged, deficient, or otherwise altered products, unlawful price-
`gouging, fake offers, bait-and-switch tactics, and other unfair and deceptive
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 4 of 56 Page ID #:4
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`practices—all of which undercut the integrity of the marketplace and constitute an
`ongoing threat to public health and safety.
`In response to the spike in fraudulent activity, price gouging and
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`counterfeiting related to 3M N95 respirators in the marketplace during the
`pandemic, 3M is taking an active role to combat these activities. 3M’s actions
`include working with law enforcement authorities around the world, including the
`Department of Justice, state Attorneys General, the Federal Bureau of Investigation,
`U.S. Attorney General, state attorneys general, and local authorities to combat
`price-gouging and other unlawful activities. 3M has established a dedicated point
`of contact for federal and state procurement officials to promptly validate third-
`party offers and quotes. In doing so, 3M has already helped prevent dozens of
`potentially fraudulent transactions with federal agencies, state governments,
`municipal governments, private enterprises and other organizations. Every U.S.
`Governor has been briefed on 3M’s efforts, and 3M is in regular contact with
`numerous governors and state attorneys general regarding these efforts to prevent
`and combat fraud. The Department of Justice has publicly thanked 3M for the
`assistance it has provided in investigations that have led to arrests. See Press
`Release: New Jersey Man Arrested For $45 Million Scheme To Defraud And Price
`Gouge New York City During COVID-19 Pandemic, available at
`https://www.justice.gov/usao-sdny/pr/new-jersey-man-arrested-45-million-scheme-
`defraud-and-price-gouge-new-york-city-during (May 26, 2020).
`3M has also created a website where people can report potential price-
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`gouging, and a “3M COVID-19 Fraud hotline” where end-users and purchasers of
`3M products in the United States and Canada can call for information and help
`detect fraud and avoid counterfeit products. 3M is also publishing information
`about its anti-price-gouging and counterfeiting efforts on the 3M website, including
`disclosure of 3M’s list prices for its N95 respirators so that customers can identify
`and avoid inflated prices, and the web address and phone numbers that can be used
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 5 of 56 Page ID #:5
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`to identify 3M authorized distributors and dealers in the United States and Canada.
`Further information about 3M’s efforts are set forth in the 3M press release and
`publication attached hereto as Exhibits 1 and 2.
`A key component of 3M’s efforts to combat fraud, price gouging, and
`9.
`counterfeiting has been the removal of bad actors through policing their activity on
`the internet. 3M has successfully secured the removal of more than 3,000 websites
`and sales offers with fraudulent or counterfeit product offerings from online
`marketplaces around the world, more than 4,000 false or deceptive social media
`posts, and more than 100 deceptive internet addresses.
`Including this action, 3M has filed twelve lawsuits in federal courts
`10.
`across the country in its fight against fraud, price gouging, and counterfeiting. 3M
`has won five temporary restraining orders and three preliminary injunction orders
`from courts across the country that put a stop to other defendants’ unlawful and
`unethical profiteering from the pandemic.
`11. This action involves Defendants’ wrongful acts as third-party sellers
`operating on Amazon.com (“Amazon”), and 3M’s efforts to take action against
`those who attempt to sell counterfeit products and those who engage in price-
`gouging on Amazon. During this historic health crisis, 3M has sought to
`aggressively protect customers from bad actors seeking to exploit the global
`pandemic for their own gain.
`12. Despite these extensive efforts during the COVID-19 crisis, pandemic
`profiteers continue to prey on and deceive consumers, including front-line
`healthcare workers and first responders, trading on the fame of the 3M names and
`trademarks, and falsely associating themselves with 3M and its reputation for
`providing the highest quality PPE at fair prices. Defendants’ scheme to illegally
`enrich themselves during the current global health crisis exemplifies pandemic
`profiteering.
`3M does not—and will not—condone bad actors deceptively trading
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 6 of 56 Page ID #:6
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`on the fame and goodwill of the 3M brand and trademarks for their personal gain.
`3M is committed to working to address and prevent the exploitation of the surge in
`demand for 3M-brand products during this historic health crisis.
`14. On or about February 24, 2020, Defendant Mao Yu, who is believed to
`be an individual who owns and operates Defendants KM Brothers Inc., KMJ
`Trading Inc., and Supreme Sunrise, Inc., began selling what were advertised as
`authentic 3M products on Amazon.com across three accounts: Julian Trading,
`Supreme Sunshine, and KM Buy. The associated Amazon listings advertised what
`were purported to be 3M-branded N95 respirators listed under the title, among
`others, “3M OHESD 142-8210Plus 8210Plus Particulate Respirator N95 - Pack of
`Two Masks.”
`In the following weeks, and until the accounts were blocked by
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`Amazon in response to customer complaints regarding the authenticity, quality, and
`pricing of the products (as detailed further below), Defendants sold products
`advertised as 3M-brand N95 respirators as third-party sellers on Amazon.com.
`16. As described further below, Defendants’ actions are in clear violation
`of 3M’s rights. On information and belief, Defendants’ conduct includes, among
`other things:
`a. selling counterfeit, damaged, deficient, or otherwise altered
`purported 3M-branded respirators;
`b. engaging in price-gouging by selling purported 3M-branded N95
`respirators for vastly inflated prices, at an average price per
`respirator across the three accounts of $23.21, which is far in excess
`of 3M Company’s average list prices for N95 respirators of
`approximately $0.63 to $3.40, depending on the model.1 For
`further reference, Defendants’ average price is almost 20 times
`3M’s posted list price of $1.27 per respirator for the same or
`comparable products; and
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`1 See Exhibit 3, 3M Company, Fraudulent Activity, Price Gouging, and
`Counterfeit Products.
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 7 of 56 Page ID #:7
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`c. making multiple false representations in advertising including, but
`not limited to, employing bait-and-switch tactics by selling non-3M
`respirators advertised as 3M-branded respirators, and fulfilling
`purchase orders with lower quantities of respirators than what was
`advertised.
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`17. Upon information and belief, Defendants charged customers over
`$350,000 by the sale of purported 3M-branded N95 and other respirators they
`advertised under the 3M brand.
`3M brings this lawsuit to protect consumers from being deceived,
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`prevent healthcare providers and procurement officers from wasting their valuable
`time interacting with illegitimate offers for critical health supplies, and stop
`Defendants’ future infringement, tarnishment and dilution of 3M’s name,
`trademarks, reputation, fame, and goodwill. Although Defendants’ original product
`listings seeking to defraud and price gouge consumers have been removed from
`Amazon, Defendants have shown a propensity to form multiple front entities to
`perpetuate their unlawful activities, and they may be seeking to continue their
`illegal acts through additional product listings by additional front entities unless and
`until they are enjoined by this Court.
`3M seeks an award of monetary damages (trebled), attorneys’ fees and
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`costs, the disgorgement of Defendants’ illicit profits, prejudgment interest, and
`injunctive relief preventing Defendants from future unlawful acts against 3M’s
`rights. Any monetary awards received by 3M will be donated to charitable
`COVID-19 relief efforts.
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`II. THE PARTIES
`20. Plaintiff 3M Company is a Delaware corporation, with a principal
`place of business and corporate headquarters located at 3M Center, St. Paul,
`Minnesota 55144. 3M is a diversified technology company with a global presence
`and is among the leading manufacturers of products for many of the markets it
`serves, including PPE such as 3M-brand N95 respirators.
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 8 of 56 Page ID #:8
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`21. On information and belief, Defendant Mao Yu is an individual residing
`in the State of California and is the owner and operator of KM Brothers Inc., KMJ
`Trading Inc., and Supreme Sunrise, Inc.
`22. On information and belief, Defendant KM Brothers Inc. is a California
`corporation with a principal place of business at 1519 Custoza Ave., Rowland
`Heights, California 91748, and doing business as “KM Buy.”
`23. On information and belief, Defendant KMJ Trading Inc. is a California
`corporation with a principal place of business at 1519 Custoza Ave., Rowland
`Heights, California 91748, and doing business as “Julian Trading.”
`24. On information and belief, Defendant Supreme Sunrise, Inc. is a
`California corporation with a principal place of business at 3321 Glenmark Dr.,
`Hacienda Heights, California 91745, and doing business as “Supreme Sunshine.”
`3M does not know the identity of additional affiliated entities, or
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`persons acting in concert with Defendants and denominates them for purposes of
`this Complaint and action as “Does 1 – 10.”
`III. JURISDICTION AND VENUE
`3M’s claims for trademark infringement, trademark counterfeiting,
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`unfair competition, false association, false endorsement, false designation of origin,
`trademark dilution, and false advertising, as asserted in Claims 1 through 5 below
`arise under the Trademark Act of 1946 (as amended; the “Lanham Act”), 15 U.S.C.
`§§ 1051, et seq. Accordingly, this Court has subject matter jurisdiction over those
`claims pursuant to 28 U.S.C. §§ 1331, 1338(a) & (b), and 15 U.S.C § 1121(a).
`3M’s claims for price-gouging and false advertising in violation of the
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`California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq., false
`advertising in violation of California’s False Advertising Law, Cal. Bus. & Prof.
`Code § 17500 et seq., and common law unfair competition are so related to the
`federal claims asserted in Claims 1 through 5 below that they form part of the same
`case or controversy. Accordingly, this Court has supplemental jurisdiction over
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`Claims 6 through 8 pursuant to 28 U.S.C. §§ 1338(b) and 1367(a).
`28. This Court also has subject-matter jurisdiction over the claims on the
`separate and independent ground of diversity of citizenship pursuant to 28 U.S.C. §
`1332(a). There is complete diversity of citizenship between the parties and the
`amount in controversy exceeds $75,000, exclusive of interest and costs.
`29. This Court has personal jurisdiction over Defendant Mao Yu because
`Yu is an individual who resides in and/or regularly transacts business in the State of
`California. This Court has personal jurisdiction over Defendants KM Brothers Inc.,
`KMJ Trading Inc., and Supreme Sunshine, Inc. because they are incorporated and
`headquartered in the Central District of California, and otherwise do business there.
`Defendants are committing, or facilitating the commission of, tortious acts in
`California and have wrongfully caused 3M substantial injury in California.
`30. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because
`a substantial part of the events giving rise to the claims occurred in the Central
`District of California and also because Defendants are subject to personal
`jurisdiction in this District.
`IV. FACTS COMMON TO ALL CLAIMS FOR RELIEF
`Plaintiff 3M
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`3M has grown from humble beginnings in 1902 as a small-scale
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`mining venture in Northern Minnesota to what it is today, namely: an industry-
`leading provider of scientific, technical, and marketing innovations throughout the
`world. Today, 3M’s offers over 60,000 products, ranging from household and
`school supplies, to industrial and manufacturing materials, to critical medical
`supplies and protective equipment.
`The 3M Brand
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`32.
`3M offers its vast array of goods and services throughout the world
`under numerous brands, including, for example: ACE; POST-IT; SCOTCH;
`NEXCARE; LITTMANN; and more. Notwithstanding the widespread goodwill
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`and resounding commercial success enjoyed by these brands, 3M’s most famous
`and widely recognized brand is its eponymous “3M” brand.
`33. The 3M brand is associated with products and materials for a wide
`variety of medical devices, supplies, and PPE, including, for example: respirators;
`stethoscopes; medical tapes; surgical gowns, blankets, and tape; bandages and other
`wound-care products; and many more. As a result, 3M-branded products are highly
`visible throughout hospitals, nursing homes, and other care facilities where patients,
`care providers, and procurement officers value and rely upon the high quality and
`integrity associated with the 3M brand.
` The Famous “3M” Respirators
`34. Over the past century, 3M has invested hundreds of millions of dollars
`in advertising and promoting its 3M-brand products to consumers throughout the
`world (including, without limitation, its 3M-brand N95 respirator) under the
`standard-character mark “3M” and the 3M logo shown below (together, the “3M
`Marks”):
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`35. For decades, products offered under the 3M Marks have enjoyed
`enormous commercial success including, without limitation, 3M-brand respirators.
`Indeed, in 2019 alone, sales of products offered by 3M exceeded billions of dollars,
`with the vast bulk of such products sold under and in connection with the 3M
`Marks.
`36. Over the same period of time, products offered under the 3M Marks
`regularly have been the subject of widespread, unsolicited media coverage and
`critical acclaim.
`37. Based on the foregoing, consumers associate the 3M Marks uniquely
`with 3M and recognize them as identifying 3M as the exclusive source of goods
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`and services offered under the 3M Marks. Based on the foregoing, the 3M Marks
`have also become famous among consumers, not only in California, but throughout
`the United States.
`38. To strengthen 3M’s common-law rights in and to its famous 3M
`Marks, 3M has obtained numerous federal trademark registrations, including,
`without limitation: (i) U.S. Trademark Reg. No. 3,398,329, which covers the
`standard-character 3M mark in International Classes 9 and 10 for, inter alia,
`respirators (the “’329 Registration”), (ii) U.S. Trademark Reg. No. 2,692,036,
`which covers the 3M logo for, inter alia, a “full line of surgical masks, face shields,
`and respiratory masks for medical purposes” (the “’036 Registration”); and (iii)
`U.S. Trademark Reg. No. 2,793,534, which covers the 3M design mark in
`International Classes 1, 5, and 10 for, inter alia, respirators (the “’534
`Registration”). True and correct copies of registration certificates for these
`registrations are attached hereto as Exhibit 4.
`39. Each of these Registrations is valid, in effect, and on the Principal
`Register.
`40. Each of these Registrations is “incontestable” within the meaning of
`15 U.S.C. § 1065. Accordingly, each Registration constitutes conclusive evidence
`of: (i) 3M’s ownership of the 3M Marks; (ii) the validity of the 3M Marks; (iii) the
`validity of the registration of the 3M Marks; and (iv) 3M’s exclusive right to use
`the 3M Marks throughout the United States for, inter alia, respirators.
`3M’s famous 3M Marks do more than identify 3M as the exclusive
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`source of goods and services offered thereunder. The famous 3M Marks also
`signify to consumers that 3M-brand products offered under the 3M Marks are of the
`highest quality and adhere to the strictest quality-control standards. Now, more
`than ever, consumers rely on the famous 3M Marks’ ability to signify that products
`offered under the 3M Marks are of the same high quality that consumers have come
`to expect of the 3M brand over the past century.
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 12 of 56 Page ID #:12
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`3M’s Extensive Efforts to Assist With the Battle Against COVID-
`19
`42. Medical professionals and first responders throughout the world are
`donning extensive PPE as they place their health and safety on the line in the battle
`against COVID-19. As 3M states on the homepage of its website, it is “committed
`to getting personal protective equipment to healthcare workers”:
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`43. Among the PPE that 3M is providing to the heroic individuals on the
`front lines of the battle against COVID-19 are its 3M-brand N95 respirators.
`Inset, below, is an image of 3M’s branded Model 8210 respirator:
`44.
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`45. Authentic N95 respirators reduce exposure to airborne biological
`particles and liquid contamination when appropriately selected, fitted, and worn.
`46. Based on the exponential increase in demand for 3M-branded
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 13 of 56 Page ID #:13
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`respirators, 3M has invested in the necessary capital and resources to double its
`annual production of 1.1 billion respirators. See Exhs. 1, 2. What 3M has not
`done in the face of the global COVID-19 pandemic is increase its prices. See id.
`47. Unfortunately, 3M’s sense of civic responsibility during this time of
`crisis is not universally shared and bad actors are seeking to exploit the increased
`demand for 3M-branded N95 respirators. These opportunists advertise and sell
`counterfeit, damaged, deficient, or otherwise altered versions of 3M’s genuine N95
`respirators to consumers seeking to protect their health. In some cases, bad actors
`advertise 3M-branded N95 respirators without any intention to supply product at
`all.
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`48. To protect both consumers and healthcare workers on the front lines of
`the COVID-19 battle from deception and inferior products, to reduce time wasted
`by healthcare providers and procurement officers on scams, as well as to protect
`3M’s goodwill, reputation, and carefully curated 3M brand, 3M is working
`diligently with law enforcement, retail partners, and others to combat unethical and
`unlawful business practices related to 3M-brand N95 respirators. For example, in
`late March 2020, 3M’s Chief Executive Offer, Mike Roman, sent a letter to U.S.
`Attorney General, William Barr, and the President of the National Governor’s
`Association, Larry Hogan of Maryland, to offer 3M’s partnership in combatting
`price-gouging. As shown in the inset image below, additional examples of 3M’s
`efforts to combat price-gouging, counterfeiting, and other unlawful conduct during
`COVID-19 include:
`a. 3M posted on its website the list price for its 3M-brand N95
`respirators so that consumers can readily identify inflated pricing
`(See Exhibit 3);
`b. 3M created a form on its website that consumers can use to report
`suspected incidents of price-gouging and counterfeiting (See
`Exhibit 5); and
`c. 3M created a fraud “hotline” that consumers can call to report
`suspect incidents of price-gouging and counterfeiting.
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 14 of 56 Page ID #:14
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` Defendants’ Unlawful Conduct
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`49. Despite 3M’s extensive measures to combat price-gouging and prevent
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`illicit sales of 3M-brand N95 respirators, bad actors continue to attempt to exploit
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`consumers. Defendants are prime examples of this unlawful behavior, which
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`jeopardizes public health and safety and risks damaging 3M’s brands and reputations.
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`50. On February 24, 2020, Defendants began selling what were purported
`to be 3M-branded N95 respirators
`across three connected accounts on
`Amazon.com. Defendants maintained
`at least forty-five (45) different
`Amazon Standard Identification
`Numbers (ASINs) used to offer
`products advertised as being 3M-
`branded N95 respirators. A sample of
`one of Defendants’ advertisements of
`3M-brand respirators, under the seller
`name “KM BUY,” is shown here:
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 15 of 56 Page ID #:15
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`51. Moreover, in an effort to profit from the public’s critical need of PPE
`during the global COVID-19 pandemic, Defendants advertised 3M-branded N95
`respirators at a consistently exorbitant price per respirator. Across all three
`accounts, the average price per respirator was $23.21. For reference, this is almost
`20 times 3M’s posted list price of $1.27 per respirator for the same or comparable
`products.
`52. To give a detailed example, Defendants made $65,183.42 selling
`ASIN: B00S04AT4U, titled “3M OHESD 142-8210 Plus 8210Plus Particulate
`Respirator N95 - Pack of Two Masks,” at an average price per respirator of $24.83
`(further increased to an average price per respirator of $27.99 when accounting for
`Defendants’ shipping & handling charges).
`53. By contrast, the list price for 3M’s 8210Plus N95 respirators is $1.18 -
`$1.50 per respirator. See Ex. 3.
`54. Defendants also routinely misrepresented what would be delivered to
`purchasers of their unauthorized quantities of purported 3M-branded N95
`respirators. While the ASIN titles indicated that the customers would be
`purchasing a specific quantity of respirators, customers routinely received fewer
`than they had paid for. Numerous complaints were filed with Amazon related to
`this fraud, including, but not limited to, the following:
`a. “The description said ten masks per pack – two packs for $40.
`What arrived were two (2) masks. I have NO immune system and I
`wanted more masks. This is a rip off. I spent $40 for two masks. I
`will not let this go – I will report these people. This is not right.
`Do not buy from these people – they are lying.”
`b. “Today I received this mask. I think this is a fake mask there is no
`other information like manufacturing details and all. They charged
`almost $26 including fast track delivery charges. This is useless
`product.”
`c. We expected a box of 10 of the 3M N95 masks. We received 4
`masks total. We paid $24.99 for ONE mask AND $29.92 shipping
`for a grand total of $129.88. Yep, we were SCAMMED!”
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`Case 2:20-cv-05049 Document 1 Filed 06/08/20 Page 16 of 56 Page ID #:16
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`d. The original post said 10 for $29.99 and I received one in a Ziploc
`bag . . .”
`e. “I think these are fake N95 Mask and seller price gouged me 20
`times the retail price. 10 pack of fake N95 mask for $150 is just
`crooked during this pandemic…”
`f. “The seller Cheating in description!! Write 2-packs, but it is only
`two masks for 80$,. The product also is uncomfortable and doesn't
`protect from anything! Worst experience!”
`55. Defendants’ product listings were intended to defraud, mislead, and/or
`deceive a reasonable consumer into believing that Defendants are authorized
`distributors of 3M’s products and/or have an association or affiliation with 3M.
`56. By selling and delivering to customers counterfeit, damaged, deficient,
`or otherwise altered respirators and engaging in price-gouging, Defendants caused
`irreparable damage to 3M’s reputation and its famous 3M Marks. There is no
`adequate remedy at law for these injuries.
`57. Based on the foregoing, 3M seeks relief against Defendants for federal
`and state trademark infringement, trademark counterfeiting, unfair competition,
`false association, false endorsement, false designation of origin, trademark dilution,
`false advertising, and unlawful, unfair, and fraudulent business acts and practices.
`V. CLAIMS FOR RELIEF
`FIRST CLAIM FOR RELIEF
`Trademark Counterfeiting – 15 U.S.C. §§ 1114(1), 1116(d)
`3M repeats and incorporates by reference the statements and
`58.
`allegations in the preceding paragraphs of the Complaint as though set forth fully
`herein.
`59. Defendants are using spurious designations that are identi