A7a650838-6a95-432c-9c41-.TIF

Date: 2020-05-06

Summary

Document 8-1, Exhibit A, filed May 6, 2020 in Case 8:20-cv-01003-MSS-CPT, a 20-page compilation of temporary restraining orders entered in other 3M Company trademark cases. It opens with an April 30, 2020 order of the U.S. District Court for the Middle District of Florida in 3M Company v. Geftico, LLC, Case No: 6:20-cv-648-Orl-41GJK, which grants a TRO barring the defendant from using the 3M Marks or claiming 3M raised N95 respirator prices, defers the preliminary injunction, sets a May 7, 2020 hearing and requires a $10,000.00 bond. It next includes an order of the U.S. District Court for the Eastern District of California in 3M Company v. RX2Live, LLC granting a TRO and ordering the defendants to show cause before Judge Dale A. Drozd. It ends with a May 4, 2020 order signed by Judge Loretta A. Preska in Case 1:20-cv-02949-LAP.

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Case 8:20-cv-01003-MSS-CPT Document 8-1 Filed 05/06/20 Page 1 of 20 PageID 192

EXHIBIT A
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

3M COMPANY,

Plaintiff,

v. Case No: 6:20-cv-648-Orl-41GJK

GEFTICO, LLC,

Defendant.
/

ORDER

THIS CAUSE is before the Court on Plaintiff’s Motion for Temporary Restraining Order

and Preliminary Injunction (Doc. 11). As set forth below, a temporary restraining order (“TRO”)

will be granted, and ruling on the preliminary injunction will be deferred.

I. BACKGROUND

Plaintiff produces, among other things, medical devices and personal protective equipment

(“PPE”) including their 3M-brand N95 respirators. (Compl., Doc 1, ¶ 4; Crist Decl., Doc 13, at 2–

3). Plaintiff has invested hundreds of millions of dollars in advertising and promoting its 3M-brand

products under the standard character mark “3M.” (Doc. 1 ¶ 24; Doc. 13 at 3). Plaintiff has also

obtained numerous federal trademark registrations for its 3M Marks that are valid, in effect, and

incontestable. (Doc. 1 ¶¶ 28–30; Doc. 13 at 3–4; U.S. Trademark Registration No. 3,398,329

(“’329 Registration”), Doc. 13-4, at 2–3; ’329 Registration Notice of Acceptance and

Acknowledgment, Doc. 13-5, at 2); U.S. Trademark Registration No. 2,793,534 (“’534

Registration”), Doc. 13-6, at 2–3; ’534 Registration Notice of Acceptance and Acknowledgment,

Doc. 13-7, at 2; U.S. Trademark Registration No. 5,469,903 (“’903 Registration”), Doc. 13-8, at

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2–3). At issue here, is the unauthorized use of Plaintiff’s 3M Marks in connection with Plaintiff’s

product, the N95 respirator mask. (See generally Doc. 1).

Plaintiff alleges that Defendant, during the current COVID-19 global pandemic, 1 has

unlawfully and in violation of Plaintiff’s Marks attempted to sell to the Center for Disease Control

(“CDC”) 3M-brand N95 respirator masks that either do not exist or are fraudulently made and that

Defendant is doing so at elevated prices, constituting price gouging. (Id. ¶¶ 40–50). In Defendant’s

attempt to sell masks to the CDC, “Defendant sent a PowerPoint presentation titled masks” to the

CDC, which offered to sell to the CDC 3M-brand N95 masks and which contained the Technical

Data Sheet for the 3M-brand masks with Plaintiff’s 3M Mark and slogan. (Doc. 1 ¶ 40; Doc. 13 at

5–6; see generally Mar. 31, 2020 Email and Presentation from Def. to CDC, Doc. 12-7).

Defendants also sent several emails falsely claiming to have 3M masks for sale and that 3M had

changed its prices. (Doc. 12-7 at 1; Apr. 6, 2020 Email from Def. to CDC, Doc. 12-8, at 2–3; Apr.

8, 2020 Email from Def. to CDC, Doc. 12-11, at 2; see Stobbie Decl., Doc. 12, ¶ 4 (stating “3M

has not increased the prices” of the 3M N95 respirator masks during this pandemic) (emphasis in

original)). Plaintiff alleges that it has no relationship with Defendant nor is Defendant an

authorized distributor or vendor of Plaintiff’s products. (Doc. 1 ¶ 43; Doc. 13 at 6). Thus, Plaintiff

alleges that Defendant is not only violating its trademarks unlawfully but is also attempting to

defraud the CDC as well as the American public. (Doc. 11 at 8–9, 21). Plaintiff alleges that this

conduct harms Plaintiff’s goodwill in the midst of this global pandemic and is a threat to public

1
“Coronavirus disease 2019 (COVID-19) is a respiratory illness that can spread from
person to person.” Centers for Disease Control and Prevention, CS 314937-A, What you need to
know about coronavirus disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-
ncov/communication/factsheets.html (Mar. 20, 2020). See also In re: Coronavirus Public
Emergency, No. 6:20-cv-17 (M.D. Fla. Mar. 18, 2020) (citing COVID-19 and outlining response
procedures for Court proceedings in the Middle District of Florida); Orlando Division Protocol for
Proceedings During COVID-19 Directives (M.D. Fla. Mar. 18, 2020) (same).

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health agencies should they, or anyone else, purchase a product that may be counterfeit and below

quality control standards. (Doc. 1 ¶ 54; Doc. 11 at 9; Doc. 13 at 9).

Plaintiff seeks a TRO as well as a preliminary injunction that would enjoin Defendant from:

(1) “using any of the 3M Marks . . . in commerce;” (2) “holding itself out to consumers and/or the

public as an authorized distributor or vendor of the 3M-brand products, or holding itself out as

having any affiliation, connection, or association with 3M in any way;” (3) falsely representing

that 3M has increased the prices of 3M-brand N95 respirators as a result of the COVID-19 crisis

or that 3M has required or authorized others to increase the prices of 3M-brand N95 respirators as

a result of the COVID-19 crisis;” and (4) “offering to sell any of 3M’s products at a price and/or

in a manner that would constitute a violation of § 501.160(2), Florida Statutes.” (Doc. 11 at 1).

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 65(b), a district court may issue a temporary

restraining order “without written or oral notice to the adverse party” if the requesting party

provides “specific facts . . . [that] clearly show that immediate and irreparable injury, loss, or

damage will result to the movant before the adverse party can be heard in opposition.” To obtain

a temporary restraining order, the movant must establish: “(1) a substantial likelihood of success

on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the

threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry

of the relief would serve the public interest.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223,

1225–26 (11th Cir. 2005). Additionally, the moving party must establish that a temporary

restraining order is necessary “to maintain the status quo until the requisite notice may be given

and an opportunity is afforded to opposing parties to respond to the application for a preliminary

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injunction.” M.D. Fla. R. 4.05(a). “[Temporary restraining] orders will be entered only in

emergency cases.” Id.

III. ANALYSIS

Plaintiff has established that it is entitled to the entry of the requested TRO.

The Complaint brings various claims against Defendant related to Defendant’s alleged

trademark infringement, false endorsement, trademark dilution, and false advertising in violation

of the Lanham Act, 15 U.S.C. § 1051 et seq., as well as claims for alleged violation of Florida’s

Unfair and Deceptive Trade Practices Act, Fla. Stat. § 501.201 et seq., dilution and trademark

infringement under Florida’s Trademarks Act, Fla. Stat. § 495.001 et seq., and unfair competition

under Florida common law. (See generally Doc. 1). Based on the evidence discussed above,

Plaintiff has established a likelihood of success on the merits. Also based on those filings, it is

clear that irreparable injury will be suffered if Plaintiff’s goodwill is injured due to Defendant’s

price gouging and sale of either fraudulent PPE that is either below industry quality standards or

that does not exist. Further, the Court places specific importance on the fact that if these fraudulent

masks are sold, the public––likely healthcare workers––may be given PPE that is faulty, and

therefore, expose them to COVID-19 and put their lives at risk. That potential harm obviously

constitutes irreparable harm to 3M’s goodwill, but especially to the public. And, keeping that

possibility from occurring, at least until the Court has the opportunity to further address these

issues, outweighs any potential harm to Defendant and is certainly serving the public interest.

The Court notes that it does have certain misgivings about whether Plaintiff met its burden

regarding the propriety of ex parte relief here. The TRO’s argument regarding ex parte relief

constitutes only one paragraph and contains no explanation as to why notice and a hearing would

be impractical. M.D. Fla. R. 4.05(b)(2) (noting that to obtain such emergency, ex parte relief,

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Plaintiff must explain why notice and a hearing would be “impractical if not impossible.”).

However, in light of the COVID-19 global pandemic and the harm that could occur should

fraudulent masks be introduced by Defendant into the public, the Court finds that a TRO is

necessary here. Accordingly, while the Court concludes that a TRO in this case is permissible, the

Court will set an expedited schedule regarding service and the preliminary injunction hearing to

ensure sufficient ability for Defendant to be heard on the matter.

Additionally, given the short timeframe that the TRO will be in place before the Defendant

is able to be heard, the Court will only require a $10,000.00 bond at this time.

IV. CONCLUSION

Therefore, it is ORDERED and ADJUDGED as follows:

1. Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction

(Doc. 11) is GRANTED in part and DEFERRED in part. To the Extent that

Plaintiff seeks a Temporary Restraining Order, the Motion is granted; the Court

defers ruling on the request for preliminary injunction.

2. Defendant and all persons acting on behalf of Defendant are hereby

IMMEDIATELY ENJOINED from using any of the 3M Marks in commerce.

3. Defendant and all persons acting on behalf of Defendant are hereby

IMMEDIATELY ENJOINED from holding themselves out to consumers and/or

the public as authorized distributors or vendors of 3M-brand products, or holding

themselves out as having any affiliation, connection, or association with 3M in any

way.

4. Defendant and all persons acting on behalf of Defendant are hereby

IMMEDIATELY ENJOINED from falsely representing that 3M has increased

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the prices of 3M-brand N95 respirators as a result of the COVID-19 crisis or that

3M has required or authorized others to increase the prices of 3M-brand N95

respirators as a result of the COVID-19 crisis.

5. Defendant and all persons acting on behalf of Defendant are hereby

IMMEDIATELY ENJOINED from offering to sell any of 3M’s products at a

price and/or in an unfair or deceptive manner.

6. On or before May 4, 2020, Plaintiff shall serve Defendants with the Complaint,

the Motion for Temporary Restraining Order and Preliminary Injunction, and this

Order.

7. Plaintiff and Defendant shall appear for an evidentiary hearing on the Motion for

Preliminary Injunction on May 7, 2020, at 1:30 p.m. in Courtroom 5B, George C.

Young United States Courthouse Annex, 401 W. Central Boulevard, Orlando,

Florida before the Honorable Carlos E Mendoza. Defendant need not file a written

response to the Motion and may rely on oral argument. Defendant is on notice that

failure to appear at the hearing may result in the imposition of a preliminary

injunction without further notice.

8. This Order is conditioned on the posting by Plaintiffs of a surety bond in the sum

of $10,000.00, on or before 2 PM, Monday, May 4, 2020.

9. This Order shall remain in effect for fourteen days unless dissolved or extended for

good cause by this Court.

DONE and ORDERED in Orlando, Florida on April 30, 2020.

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Copies furnished to:

Counsel of Record

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

11 3M COMPANY, No. 1:20-cv-0523-NONE-SAB
12 Plaintiff,
13 v. ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER;
14 RX2LIVE, LLC, and RX2LIVE, INC., AND ORDERING DEFENDANTS TO SHOW
CAUSE RE PRELIMINARY INJUNCTION
15 Defendants.
(Doc. No. 14)
16

19 On April 10, 2020, plaintiff 3M Company (“3M”) filed a complaint against defendant
20 RX2Live, LLC. (Doc. No. 1.) On April 19, 2020, plaintiff filed an amended complaint, adding
21 RX2Live, Inc. as a defendant. (Doc. No. 8.) On April 27, 2020, plaintiff filed a motion for a
22 temporary restraining order (“TRO”) and preliminary injunction as to its federal and state claims
23 for trademark infringement and dilution, unfair competition, false endorsement, false association,
24 false designation of origin, and unlawful, unfair, and fraudulent business acts and practices.
25 (Doc. No. 14-1.) 3M seeks temporary injunctive and preliminary relief to prevent defendants
26 RX2Live, LLC and RX2Live, Inc. from using 3M’s trademarks in connection with defendants’
27 promotion of goods or services, including plaintiff’s 3M-brand N95 respirators. (Id.) As of the
28 date and time of entry of this order, no defendant has filed an opposition to the pending motion or

1
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1 otherwise attempted to communicate with the court.1 Having reviewed the record and the

2 relevant authorities, the court grants the motion for a TRO and orders defendants to show cause

3 why a preliminary injunction should not issue.

4 IT IS HEREBY ORDERED that 3M’s Motion for a TRO is GRANTED in its entirety.

5 It is hereby further ORDERED that:

6 1. Defendants appear before The Honorable Dale A. Drozd, District Judge, United

7 States District Court for the Eastern District of California, on Tuesday, May 12, 2020, at 10:00

8 a.m. (Pacific Time), via telephone conference pursuant to General Order No. 612 issued on

9 March 16, 2020, and show cause (the “Show Cause Hearing”) as to why the court should not

10 enter an Order, pursuant to Federal Rule of Civil Procedure 65(a), that:

11 a. Preliminarily enjoins defendants, their agents, servants, employees, officers and all

12 persons and entities in active concert and participation with them from using the “3M” trademarks

13 (the “3M Marks”) and any other word, name, symbol, device, or combination thereof that is

14 confusingly similar to the 3M Marks, for, on, and/or in connection with the manufacture,

15 distribution, advertising, promoting, offering for sale, and/or sale of any goods or services,

16 including, without limitation, plaintiff’s 3M-brand N95 respirators, during the pendency of this

17 action, and

18 b. Preliminarily enjoins defendants, their agents, servants, employees, officers and all

19 persons and entities in active concert and participation with them from engaging in any false,

20 misleading, and/or deceptive conduct in connection with 3M and its products, including, without
21 limitation, representing themselves as being authorized distributors, vendors, agents,

22
1
The court finds that plaintiff has made reasonable attempts to provide defendant notice of its
23 motion for a TRO and this court’s April 28, 2020 minute order via telephone, e-mail, and
overnight delivery. (Doc. No. 14-2 at 2–3; Doc. No. 14-3 at 2; Doc. Nos. 16, 17.) Plaintiff
24
indicates that all relevant documents were delivered on April 27 and April 29, 2020 to the home
25 of defendants’ CEO Brian Hazelgren in Mesa, Arizona (Doc. No. 14-2; Doc. No. 14-41; Doc. No.
17), the same address where plaintiff personally served its Complaint, First Amended Complaint,
26 and summons upon defendant. (Doc. No. 15.) The court notes that defendants did not retain
attorney Joe Lipari of The Sultzer Law Group as counsel and that plaintiff has been diligent in
27 attempting to determine whether defendants have retained counsel and whether defendants would
stipulate to a resolution of plaintiff’s motions. (Doc. No. 17.)
28
2
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1 representatives, retailers, and/or licensees of 3M and/or any of 3M’s products (including, without

2 limitation, 3M-brand N95 respirators); falsely representing to have an association or affiliation

3 with, sponsorship by, and/or connection with, 3M and/or any of 3M’s products; falsely

4 representing that 3M has increased the price(s) of its 3M-brand N95 respirators; and offering to

5 sell any of 3M’s products at a price and/or in a manner that would constitute a violation

6 California Penal Code § 396 and/or California Business and Professions Code §§ 17200 et seq.,

7 during the pendency of this action.

8 2. Sufficient reason having been shown therefor, from the date of this Order, through

9 and including the date of the Show Cause Hearing, Defendants, their agents, servants, employees,

10 officers and all persons and entities in active concert and participation with them, are hereby

11 temporarily restrained, pursuant to Federal Rule of Civil Procedure 65(b), from engaging in any

12 of the acts and/or conduct described in Paragraphs 1(a) and 1(b) of this Order.

13 3. Pursuant to this court’s equitable powers and discretion, 3M need not post a bond.

14 4. 3M and/or its authorized representative(s) shall serve defendants with copies of

15 this Order and all pleadings and other papers in support of the Order on or before Monday, May

16 4, 2020, by overnight courier service with verification of receipt.

17 5. Defendants shall file an Opposition, if any, to the Order to Show Cause on or

18 before Thursday, May 7, 2020. Defendants are forewarned that failure to timely file an

19 opposition waives any right to be heard in opposition at the hearing on the pending motion for

20 preliminary injunction and may result in the hearing being vacated and the matter submitted for
21 decision on the papers. See Local Rule 230(c); see also Goldberg v. Barreca, 720 F. App’x 877,

22 878 (9th Cir. 2018) (holding district court did not abuse its discretion by failing to hold

23 evidentiary hearing when initially ruling on preliminary injunction motion because it did not need

24 to resolve any factual disputes).2

25 6. Plaintiff shall file and serve its reply to defendant’s opposition, if any, on or before

26 Friday, May 8, 2020.
27 2
Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
28 36-3(b).
3
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1 7. Defendants are further notified of their right to apply to the court for modification

2 or dissolution of this Temporary Restraining Order on two (2) days’ notice or such shorter notice

3 as the court may allow. See Fed. R. Civ. P. 65(b) and Local Rule 231(c)(8).

4 This court shall retain jurisdiction to hear and determine all matters arising out of, relating

5 to, and/or otherwise concerning the interpretation and/or enforcement of this Order.

6 IT IS SO ORDERED.
7
Dated: April 30, 2020
8 UNITED STATES DISTRICT JUDGE

20
21

26
27

28
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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
3M COMPANY,

Plaintiff, Case No.: 1:20-cv-02949 (LAP)(KNF)

-against-

PERFORMANCE SUPPLY, LLC,
Defendant.

ORDER ON PLAINTIFF 3M COMPANY’S
APPLICATION FOR A PRELIMINARY INJUNCTION
AGAINST DEFENDANT PERFORMANCE SUPPLY, LLC

WHEREAS, the Court, having considered Plaintiff 3M Company’s (“3M”)

Memorandum of Law Support in Support of its Application for a Temporary Restraining Order

and Preliminary Injunction (Dkt. No. 13) against Defendant Performance Supply, LLC

(“Defendant”), together with the supporting Declarations of Charles Stobbie (Dkt. No. 14),

David A. Crist (Dkt. No. 15), and A. John P. Mancini (Dkt. No. 16), as well as the record and

proceedings to date in the above-captioned action, hereby finds as follows:

1. Defendant is not an authorized distributor, vendor, agent, or representative of 3M.

Defendant also is not authorized to solicit orders of any size for 3M’s N95 respirators (or any

other goods or services). Nonetheless, on or about March 30, 2020, Defendant sent a Formal

Quote to New York City’s Office of Citywide Procurement, offering to sell seven million of

3M’s N95 respirators for 500% more than 3M’s list price. To deceive New York City’s

procurement officers into believing that Defendant was authorized to solicit orders on 3M’s

behalf, Defendant, inter alia, reproduced the standard-character “3M” mark and 3M design mark

(the “3M Marks”), and the slogan “3M Science. Applied to Life” (the “3M Slogan”),

throughout the Formal Quote.
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2. 3M cannot control the quality of the products that Defendant is purporting to sell

under the 3M Marks or 3M Slogan. Additionally, the harm to 3M’s reputation and the 3M brand

of being associated with price-gouging and/or raising the prices of its N95 respirators during the

global COVID-19 pandemic is immeasurable.

3. Based on the foregoing, 3M is likely to suffer irreparable harm in the absence of a

preliminary injunction.

4. 3M owns incontestable federal trademark registrations for its 3M Marks, as well

as a federal trademark registration for its 3M Slogan. Accordingly, 3M is likely to establish the

validity of its 3M Marks and 3M Slogan.

5. 3M also is likely to establish that Defendant’s use of the 3M Marks and 3M

Slogan creates a likelihood of confusion about the source and/or quality of the products that

Defendant is offering to sell, and/or whether Defendant has an association or affiliation with 3M.

3M has been using its 3M Marks and 3M Slogan for decades. During this period, 3M has

invested hundreds of millions of dollars into advertising and promoting a vast array of goods and

services under its 3M Marks and 3M Slogan, including its N95 respirators. Defendant is trading

off the widespread commercial recognition and goodwill of the 3M Marks and 3M Slogan in

connection with offering to sell products that 3M is widely known for manufacturing and selling,

namely, N95 respirators. Accordingly, it is no surprise that Defendant actually confused New

York City procurement officials into believing that Defendant was an authorized vendor of 3M-

brand N95 respirators.

6. Based on the foregoing, 3M is likely to succeed on the merits of its claims for

federal trademark infringement, unfair competition, false association, false endorsement, and

2
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false designation of origin under Sections 32 and 43(a)(1)(A) of the Lanham Act, as well as its

claims for trademark infringement, and unfair competition, under New York common law.

7. Defendant cannot be heard to complain about having to refrain from engaging in

trademark infringement, unfair competition, and price-gouging. 3M, on the other hand, faces

irreparable harm if Defendant’s conduct continues.

8. Based on the foregoing, the balance of hardships favors 3M.

9. The public has an interest in avoiding confusion about the source and quality of

goods and services. This is especially true during the global COVID-19 pandemic, when

consumers, including experienced governmental procurement officials, are relying on the 3M

Marks and 3M Slogan to indicate that goods and services offered thereunder originate from 3M,

and are of the same quality that consumers have come to expect of the 3M brand.

10. Based on the foregoing, the issuance of a preliminary injunction would benefit the

public.

BASED ON THE FOREGOING, the Court hereby GRANTS 3M’s Application for a

preliminary injunction against Defendant in its entirety, and ORDERS as follows:

1. Pursuant to FED. R. CIV. P. 65(a):

a. Defendant, its agents, servants, employees, officers and all persons and entities in

active concert and participation with them, are enjoined during the pendency of this action from

using the 3M Marks and 3M Slogan, and any other word, name, symbol, device, or combination

thereof that is confusingly similar to the 3M Marks and/or the 3M Slogan, for, on, and/or in

connection with the manufacture, distribution, advertising, promoting, offering for sale, and/or

sale of any goods or services, including, without limitation, Plaintiff’s 3M-brand N95 respirators,

and

3
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b. Defendant, its agents, servants, employees, officers and all persons and entities in

active concert and participation with them, are also enjoined during the pendency of this action

from engaging in any false, misleading, and/or deceptive conduct in connection with 3M and its

products, including, without limitation, representing itself as being an authorized distributor,

vendor, agent, representative, retailer, and/or licensee of 3M and/or any of 3M’s products

(including, without limitation, 3M-brand N95 respirators); falsely representing to have an

association or affiliation with, sponsorship by, and/or connection with, 3M and/or any of 3M’s

products; falsely representing that 3M has increased the price(s) of its 3M-brand N95 respirators;

and offering to sell any of 3M’s products at a price and/or in a manner that would constitute a

violation of NEW YORK GENERAL BUSINESS LAW § 369-R.

2. Pursuant to this Court’s equitable powers and discretion, because of 3M’s

financial situation, it need not post a bond.

3. 3M and/or its authorized representative(s) must serve a copy of this Order on

Defendant and/or Defendant’s registered agent via overnight mail or courier and/or personal

service at 3 Westbrook Way, Manalapan, New Jersey 07726, delivered on or before 5:00 pm on

May 6, 2020. The foregoing shall constitute proper service and notice of this Order.

4. This Court shall retain jurisdiction to hear and determine all matters arising out of,

relating to, and/or otherwise concerning the interpretation and/or enforcement of this Order.

5. The Temporary Restraining Order entered against Defendant in this action on

April 24, 2020 (Dkt. No. 17) is vacated and superseded by this Order.

4
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6. Counsel shall inform the Court by letter no later than June 4, 2020 of the status of

the action.

SO ORDERED this 4 day of May, 2020.

___________________________________
The Honorable Loretta A. Preska
United States District Judge

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