3M Company v. Performance Supply — Declaration of David A. Crist ISO TRO/PI
- Date
- 2020-04-24
Summary
A declaration of David A. Crist, a Vice President and Chief Marketing Officer at 3M, filed April 24, 2020 as Document 15 in 3M Company v. Performance Supply, LLC, Case No. 1:20-cv-02949, in the U.S. District Court for the Southern District of New York. It supports 3M's application for a temporary restraining order and preliminary injunction. The declaration describes 3M's marks and federal trademark registrations, including U.S. Trademark Reg. No. 3,398,329, and attaches them as exhibits. It states that on or about March 30, 2020 Performance Supply sent New York City's Office of Citywide Procurement a quote for seven million purported 3M N95 respirators at $6.05 and $6.35 per mask, which it compares with 3M list prices of $1.27 and $1.02-$1.31. It asserts that Performance Supply is not an authorized 3M distributor and ends with a certificate of service by counsel for 3M.
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Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
3M COMPANY,
Plaintiff,
Case No.: 1:20-cv-02949 (LAP)(KNF)
-against-
Jury Trial Demanded
PERFORMANCE SUPPLY, LLC,
Defendant.
DECLARATION OF DAVID A. CRIST
IN SUPPORT OF PLAINTIFF 3M COMPANY’S APPLICATION
FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I, David A. Crist, pursuant to 28 U.S.C. § 1746 and upon penalty of perjury, declare as
follows:
1. I am a resident of the State of Minnesota; over the age of 18; and competent to
make this declaration. I could and would testify as to the matters set forth herein, if called upon
to do so.
2. I am a Vice President and Chief Marketing Officer for the Safety and Industrial
Business Group at 3M. The information set forth herein is based on my personal knowledge
obtained through the course of my duties at 3M, which include, among other things, 3M’s: (i)
brand-development and marketing efforts; (ii) trademark policies; (iii) sales and pricing guidelines;
and (iv) efforts to assist in the battle against COVID-19. The information set forth herein is also
based on my review of records and documents (including electronic records) maintained in the
regular course of 3M’s business, and the complaint in this lawsuit.
3. I submit this declaration in support of 3M Company’s application for a temporary
restraining order and preliminary injunction against Defendant Performance Supply, LLC
(“Performance Supply”) in the above-referenced action.
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 2 of 9
3M Company
4. 3M (then, Minnesota Mining and Manufacturing company) began over 100 years
ago as a small-scale mining venture in Northern Minnesota. It has grown into an industry-leading
provider of scientific, technical, and marketing innovations throughout the world.
5. 3M’s portfolio includes more than 60,000 goods and services, ranging from
household and school supplies, to medical devices and equipment. See Exhibit 1 (3M History,
3M Company, available at https://www.3m.com/3M/en_US/company-us/about-3m/history/ (last
visited on Apr. 21, 2020).
The 3M Brand and Marks
6. 3M provides goods and services throughout the world under numerous brands,
including well-known brands such as: ACE; POST-IT; SCOTCH; NEXCARE; and more. See
Exhibit 2 (3M Featured Brands, 3M Company, available at
https://www.3m.com/3M/en_US/company-us/our-brands/ (last visited on Apr. 21, 2020).
7. 3M’s most famous and widely recognized brand is its eponymous “3M” brand. The
3M brand encompasses products and materials for a wide array of medical devices, supplies, and
personal protective equipment (“PPE”), including, for example: stethoscopes; medical tapes;
surgical gowns; blankets; bandages and other wound-care products; and respirators. See Exhibit
3 (3M Medical Products, 3M Company, available at https://www.3m.com/3M/en_US/company-
us/all-3m-products/~/All-3M-Products/Health-
Care/Medical/?N=5002385+8707795+8707798+8711017+3294857497&rt=r3 (last accessed on
Apr. 21, 2020).
2
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 3 of 9
8. 3M-branded products are highly visible throughout numerous hospitals, nursing
homes, and other care facilities where patients, care providers, and procurement officers value and
rely on the high quality and integrity associated with the 3M brand.
9. 3M employs strict quality-control standards in manufacturing all of its products,
including its products used in the fields of healthcare and worker safety. As a result of this
commitment to quality, 3M-brand N95 respirators are highly respected and widely used and
recommended by medical workers, public-health officials, and throughout the worker safety
market.
10. Over the past century, 3M has invested hundreds of millions of dollars in
advertising and promoting its 3M-brand products to customers throughout the world (including its
3M-brand N95 respirators) under the standard-character mark “3M” and the 3M design mark
(together, the “3M Marks”). 3M also uses its famous “3M Science. Applied to Life” slogan (the
“3M Slogan”) in connection with the promotion of its goods and services.
11. During this period, 3M’s goods and services offered under its 3M Marks, in
particular, have been the subject of widespread, unsolicited media coverage and critical acclaim.
12. Products offered by 3M using its 3M Marks have also enjoyed enormous
commercial success (including, without limitation, its range of 3M-brand N95 respirators).
13. 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 Int. Classes 9
and 10 for, inter alia, respirators (the “‘329 Registration”); (ii) U.S. Trademark Reg. No. 2,793,534,
which covers the 3M design mark in Int. Classes 1, 5, and 10 for, inter alia, respirators (the “‘534
Registration”); and (iii) U.S. Trademark Reg. No. 5,469,903, which covers the “3M Science.
3
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 4 of 9
Applied to Life” slogan in a number of Int. Classes, including Int. Class 9 for facial masks and
respirators (the “‘903 Registration”).
14. I attach hereto as Exhibit 4 a true and correct copy of the ‘329 Registration.
Pursuant to Section 15 of the Lanham Act, namely, 15 U.S.C. § 1065, on April 2 2014, the United
States Patent and Trademark Office (the “PTO”) issued a Notice of Acknowledgement of 3M’s
Declaration of Incontestability of the ‘329 Registration. See Exhibit 5.
15. I attach hereto as Exhibit 6 a true and correct copy of the ‘534 Registration.
Pursuant to Section 15 of the Lanham Act, namely, 15 U.S.C. § 1065, on December 21, 2009, the
PTO issued a Notice of Acknowledgement of 3M’s Declaration of Incontestability of the. See
Exhibit 7.
16. I attach hereto as Exhibit 8 a true and correct copy of the ‘903 Registration.
17. The general consuming public associates the 3M Marks uniquely with 3M and
recognizes them as identifying 3M as the exclusive source of goods and services offered under the
3M Marks. Additionally, 3M has received public commendation and praise for its contributions
to the COVID-19 pandemic response, particularly with respect to its production of 3M-brand N95
respirators. Based on the public commendation and praise, and widespread media coverage of
3M-brand N95 respirators during the COVID-19 pandemic, the public is more aware now than
ever that 3M manufacturers N95 respirators and other PPE that is essential to protecting healthcare
personnel and workers from exposure to airborne particles including viruses like COVID-19.
Performance Supply’s Misconduct
18. Defendant Performance Supply is seeking to exploit the 3M brand and prey on
unwitting customers and governmental agencies in the midst of the COVID-19 public health
emergency.
4
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 5 of 9
19. On or about March 30, 2020, on information and belief, Performance Supply sent
Ms. Ebony P. Roberson, a Purchasing Agent at New York City’s Office of Citywide Procurement,
a Formal Quote, offering to sell seven million purported 3M N95 respirators. See Exhibit 9.
Performance Supply stated that it would sell the respirators for $6.05 per “mask” (respirator) for
2 million 3M Model 8210 respirators and for $6.35 per “mask” (respirator) for 5 million 3M Model
1860 respirators. See id. The prices at which Performance Supply offered to sell New York City
the purported 3M-brand N95 respirators are more than five times 3M’s list price:
3M’s Performance
Per-Respirator Supply’s
3M Model Markup
Single-Case U.S. Per-“Mask”
List Price Price
1860 $1.27 $6.35 500%
8210 $1.02-$1.31 $6.05 460-590%
20. In its one-page Formal Quote, Performance Supply reproduced 3M’s marks nine
times. See Ex. 9 at p. 1. Performance Supply also attached to the Formal Quote a 3M Technical
Specification Sheet for both Models of 3M-brand N95 respirators that Performance Supply
purported to have available for sale. See id. at pgs. 2-6. Plaintiff’s famous 3M design mark, and
well-known 3M Slogan, prominently appeared in the upper left-hand corner of both Technical
Specification Sheets. Id. Plaintiff’s famous 3M design mark appeared in the lower left-hand
corner of both Technical Specification Sheets. Id. Plaintiff’s famous standard-character 3M mark
also appeared in the Technical Specification Sheets. Id.
21. Based on Performance Supply’s Formal Quote, on information and belief, Ms.
Roberson, prepared an “Evaluation Request – Bid Document Review” as part of the City’s quality-
assurance measures. See generally Ex. 9 at pgs. 14-5. In the Evaluation Request, New York City
twice officials identified Performance Supply as a “vendor” of 3M-brand, N95 Model 8210 and
1860 respirators. See id. at p. 14. However, the New York City officials were mistaken.
5
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 6 of 9
Performance Supply is not, and never has been, a 3M authorized distributor, vendor, or
representative of Plaintiff’s products. Performance Supply also does not have, and has never had,
an association or affiliation with Plaintiff. Additionally, 3M has never licensed its 3M Marks or
3M Slogan to Performance Supply for any purpose. 3M also has never consented to, or authorized
or approved, Performance Supply’s use of the 3M Marks or 3M Slogan for any purpose.
22. In the Formal Quote, Performance Supply also stated:
“Due to the national emergency, acceptance of the purchase order is at the full
discretion of 3M and supplies are based upon availability. The N95 masks 3M can
begin shipping in 2-4 weeks CIF at any of 3M [sic] plants in the USA or 3M Plants
Overseas according to their manufacturing schedule. 3M choose the plant. Order
may be shipped in whole or in part.” Ex. 9 at p. 1.
23. For purposes of clarity, Performance Supply is not authorized to solicit purchase
orders from customers for submission to 3M for approval. Nor is Performance Supply authorized
to state how, where, or in what quantity such orders would be filled. The Formal Quote does not
accurately describe how 3M fills N95 orders. Indeed, 3M fills orders for its N95 respirators by
accepting purchase orders from 3M’s authorized distributors and wholesalers and, to a lesser
extent, directly from the government. 3M does not accept purchase orders from unauthorized
resellers.
24. Turning back to Performance Supply’s Formal Quote, the same day that Ms.
Roberson received it, she contacted Eileen Simmons, a 3M Business Development Manager for
government markets, for verification of Performance Supply’s claim. Ms. Simmons advised Ms.
Roberson that Performance Supply was not associated with 3M, and so that potential sale was
averted. However, there is nothing to prevent Performance Supply from making similar offers to
other government or healthcare entities around the United States, causing irreparable harm to the
3M brand and putting the public at risk. Accordingly, 3M commenced this lawsuit against
Performance Supply on April 10, 2020.
6
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 7 of 9
Performance Supply’s Misconduct Is Causing Immediate and Irreparable Harm to 3M—
Especially in This District
25. By falsely holding itself out as a party that is affiliated with or authorized by 3M to
sell 3M-branded respirators, and using 3M’s trademarks to advance this false representation of
affiliation, Performance Supply is causing immediate, irreparable, and immeasurable harm to 3M’s
brand and reputation.
26. Performance Supply is price-gouging by offering to sell purported 3M-brand N95
respirators to New York City for upwards of 600% their 3M single-case U.S. list price.
Performance Supply’s price-gouging activity is particularly harmful to 3M at this unprecedented
time. That is because Performance Supply’s conduct disrupts the supply of respirators by, among
other things, (a) wasting 3M and public resources devoted to identifying fraudulent pricing and
inauthentic offers and (b) squandering public and private monies used to pay grossly excessive
prices for essential respirators.
27. Performance Supply’s conduct is also particularly damaging to the 3M brand’s
reputation in New York City. When customers and government officials observe price-gouging
by third parties, particularly those that hold themselves out as affiliated with or authorized by 3M
(as Performance Supply is doing), they will inevitably draw the false impression that this behavior
reflects pricing changes by 3M in response to the COVID-19 pandemic. The false impressions are
so strong that in this instance, as in others, public officials are complaining to 3M about the
unlawful behavior of parties that have no relationship to 3M. These false impressions are harming
3M’s reputation and it is unknown how long it may take, if ever, to repair that damage, what
measures, if any, will work, and how much those measures may cost. Under the circumstances, it
is impossible to measure the resulting damage to 3M.
7
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 8 of 9
Case 1:20-cv-02949-JLR-JW Document 15 Filed 04/24/20 Page 9 of 9
CERTIFICATE OF SERVICE
I, A. John P. Mancini, hereby certify that, on April 24, 2020, I filed a true and correct copy
of the foregoing document, titled Declaration of David A. Crist in Support of Plaintiff 3M
Company’s Application for a Temporary Restraining Order and Preliminary Injunction, using this
Court’s ECF Filing System. I also certify that, on April 22, 2020, before filing the foregoing
document, I arranged for service of a true and correct copy of it on Defendant Performance Supply,
LLC via personal service and First Class Mail at:
Performance Supply, LLC
c/o Ronald Romano
3 Westbrook Way
Manalapan, New Jersey 07726
/s/ A. John P. Mancini
A. John P. Mancini
Attorney for Plaintiff 3M Company
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