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Exhibit 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
3M COMPANY,
Plaintiff, Case No.:
-against- Jury Trial Demand
PERFORMANCE SUPPLY, LLC,
Defendant.
COMPLAINT
Plaintiff 3M Company (“Plaintiff” or “3M”), by and through its undersigned attorneys, as
and for its Complaint against Defendant Performance Supply, LLC (“Defendant”), hereby alleges
as follows based on knowledge of its own actions, and on information and belief as to all other
matters:
NATURE OF THE ACTION
1. This lawsuit concerns Defendant’s use of Plaintiff’s famous “3M” trademarks to
perpetrate a false and deceptive price-gouging scheme on unwitting consumers, including agencies
of government, during the global COVID-19 pandemic.
2. Throughout its history, 3M has been providing state-of-art, industry-leading
scientific and medical products to consumers throughout the world under its famous 3M marks.
Based on this longstanding, continuous use, consumers associate the 3M marks uniquely with 3M.
Now, more than ever, consumers are also relying on the famous 3M marks 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 personal protective equipment (“PPE”), including Plaintiff’s 3M-brand
N95 respirators.
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3. Healthcare professionals and other first responders are heroically placing their
health and safety on the line to battle COVID-19. To assist in the battle against COVID-19, 3M
is supplying healthcare workers and other first responders with 3M-brand N95 respirators. For
example, in the last week of March 2020, 3M supplied healthcare workers throughout the United
States with 10 million of its 3M-brand N95 respirators. 3M also recently announced that it will
import 166.5 million of its 3M-brand N95 respirators into the United States in the next three
months to supplement its US production, and has invested the capital and resources necessary to
double its current annual global production of 1.1 billion respirators. In response to the COVID-
19 outbreak and surge in need for N95 respirators, 3M has doubled its global output rate to nearly
100 million respirators per month, and it expects to produce around 50 million respirators per
month in the United States by June 2020.
4. The demand for 3M-branded respirators has grown exponentially in response to the
pandemic, and 3M has been committed to seeking to meet this demand while keeping its respirators
priced fairly. 3M has not increased the prices that it charges for 3M respirators as a result of the
COVID-19 outbreak.
5. Unfortunately, any number of wrongdoers seek to exploit the current public health
emergency and prey on innocent parties through a variety of scams involving 3M N95 respirators
and other products in high demand. These scams include unlawful price-gouging, fake offers,
counterfeiting, and other unfair and deceptive practices—all of which undercut the integrity of the
marketplace and constitute an ongoing threat to public health and safety.
6. In response to fraudulent activity, price-gouging and counterfeiting related to N95
respirator masks that has spiked in the marketplace in response to the pandemic, 3M is taking an
active role in combating these activities. 3M’s actions include working with law enforcement
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authorities around the world, including the U.S. Attorney General, state Attorneys General and
local authorities, and creating a “3M COVID-19 Fraud hotline” for the United States and Canada
that end users and purchasers of 3M products can call for information to help detect fraud and
avoid counterfeit products. 3M is also publishing information on its website to help inform the
purchasing public about 3M’s prices and products so that they can avoid fraud. Further
information about 3M’s efforts is set forth in the 3M press release and publication attached hereto
as Exhibits 1 and 2. This Complaint is another part of these efforts.
7. Despite 3M’s extensive efforts during COVID-19, unsavory characters continue
their quests to take advantage of healthcare workers, first responders, and others in a time of need
and trade off the fame of the 3M brand and marks. Defendant is a prime example of this unlawful
behavior.
8. On or about March 30, 2020, Defendant sent a Formal Quote to New York City’s
Office of Citywide Procurement, offering to sell millions of Plaintiff’s 3M-brand N95 respirator
masks at a grossly inflated aggregate price of approximately $45 million. Defendant is not an
authorized distributor of any of Plaintiff’s products and has no rights to use Plaintiff’s famous 3M
marks. Nonetheless, to confuse and deceive New York City officials into believing that Defendant
was an authorized distributor of Plaintiff’s products, Defendant reproduced the famous 3M marks
throughout the Formal Quote, and attached to it Technical Specification Sheets that prominently
feature Plaintiff’s famous 3M marks. The Formal Quote itself also sought to confuse its recipient
by referring to the St. Paul, Minnesota headquarters of 3M as opposed to Defendant’s New Jersey
headquarters, as well as repeatedly referring to the offer’s acceptance being at 3M’s discretion—
implying, falsely, that the Formal Quote came from 3M. Defendant’s scheme worked. Indeed, as
part of the Citywide Procurement Office’s quality-assurance measures, officials prepared a Bid
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Evaluation Request, wherein they mistakenly identified Defendant as a “vendor” of 3M-brand N95
respirators—twice. Compounding Defendant’s bad acts, the prices at which it offered to sell 3M-
brand N95 respirators to New York City’s Procurement Office were 500%-600% above 3M’s list
price. This offer constituted extreme price-gouging by any measure, including under New York
State’s statutory provision (NEW YORK GENERAL BUSINESS LAW § 396-r). Not only does such
price-gouging further strain the limited resources available to combat COVID-19, but such conduct
justifiably has caused public outrage, which threatens imminent and irreparable harm to 3M’s
brand as Defendant and similar pandemic profiteers promote an improper association between
3M’s marks and exploitative pricing behavior.
9. 3M does not – and will not – tolerate individuals or entities deceptively trading off
the fame and goodwill of the 3M brand and marks for personal gain. This is particularly true
against those who seek to exploit the surge in demand for 3M-brand products during the COVID-
19 global pandemic, which already has claimed tens of thousands of lives worldwide and more
than 5,000 lives in New York State alone.
10. Accordingly, to further protect governmental actors and consumers from confusion
and mistake, to reduce the amount of time and energy that government officials are forced to waste
interacting with such schemes, as well as to forestall any further diminution to the 3M brand and
marks’ reputation, fame, and goodwill, Plaintiff brings this lawsuit against Defendant for federal
and state trademark infringement, unfair competition, false association, false endorsement, false
designation of origin, trademark dilution, false advertising, and deceptive acts and practices.
Plaintiff also seeks preliminary and permanent injunctive relief. As described below, any
damages, costs, or fees recovered by Plaintiff will be donated to charitable COVID-19 relief
efforts.
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THE PARTIES
11. Plaintiff 3M Company is a Delaware corporation, with a principal place of business
and corporate headquarters located at 3M Center, St. Paul, Minnesota 55144.
12. On information and belief, Defendant Performance Supply, LLC is a New Jersey
limited liability company, with a principal place of business at 3 Westbrook Way, Manalapan,
New Jersey 07726.
JURISDICTION AND VENUE
13. The claims for trademark infringement, unfair competition, false association, false
endorsement, false designation of origin, trademark dilution, and false advertising, respectively,
asserted in Counts I - IV, infra, arise under the Trademark Act of 1946 (as amended; the “Lanham
Act”), namely, 15 U.S.C. §§ 1051 et seq. Accordingly, this Court has original and subject-matter
jurisdiction over Counts I – IV pursuant to 28 U.S.C. §§ 1331, 1338(a), and 15 U.S.C § 1121(a).
14. The claims for deceptive acts and practices, false advertising, dilution, trademark
infringement and unfair competition, respectively, asserted in Counts V - IX, infra, arise under
New York statutory and common law, and are so related to the federal claims asserted in Counts
I - IV, infra, that they form part of the same case or controversy. Accordingly, this Court has
supplemental jurisdiction over Counts V - IX pursuant to 28 U.S.C. §§ 1338(b) and 1367(a).
15. Defendant has purposefully availed itself of the privilege of transacting business in
this District. Defendant has also committed and intentionally directed tortious acts towards
residents and governmental agencies in this District. For example, Defendant recently used
Plaintiff’s famous 3M marks as part of a price-gouging scheme to deceive New York City
officials located in this District into believing that Defendant was authorized by 3M to sell
millions of 3M-brand N95 respirator masks for an aggregate price of roughly $45 million—
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several multiples of the 3M list price. 3M’s claims arise out of and relate to Defendant’s
transactions of business, and tortious acts committed in this District. Based on the foregoing, this
Court has long-arm jurisdiction over Defendant pursuant to CPLR NEW YORK CIVIL PRACTICE
LAW AND RULES § 302(a)(1)-(2), and FED. R. CIV. P. 4(k).
16. A substantial part of the events giving rise to the claims asserted, infra, occurred in
this District. Therefore, venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(2).
17. Defendant is subject to personal jurisdiction in this District. Therefore, venue is
also proper in this District pursuant to 28 U.S.C. § 1391(b)(3).
FACTS COMMON TO ALL CLAIMS FOR RELIEF
I. Plaintiff
A. 3M
18. 3M has grown from humble beginnings in 1902 as a small-scale 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 portfolio includes more
than 60,000 goods and services, ranging from household and school supplies, to industrial and
manufacturing materials, to medical supplies and equipment.
B. The 3M Brand
19. 3M offers its vast array of goods and services throughout the world under numerous
brands, including, for example: ACE; POST-IT; SCOTCH; NEXCARE; and more. 3M also uses
its famous “3M Science. Applied to Life” slogan in connection with the promotion of its goods
and services. Notwithstanding the widespread goodwill and resounding commercial success
enjoyed by these brands, 3M’s most famous and widely recognized brand is its eponymous “3M”
brand.
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20. 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 more. As
such, 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.
C. The Famous “3M” Marks
21. Over the past century, Plaintiff 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
inset 3M design mark (together, the “3M Marks”):
22. For decades, products offered under Plaintiff’s 3M Marks have enjoyed enormous
commercial success (including, without limitation, its 3M-brand N95 respirator). Indeed, in 2019,
alone, sales of products offered under Plaintiff’s 3M Marks exceeded several hundred million
USD.
23. Over the same period of time, products offered under Plaintiff’s 3M Marks have
regularly been the subject of widespread, unsolicited media coverage and critical acclaim.
24. Based on the foregoing, consumers associate the 3M Marks uniquely with Plaintiff
and recognize them as identifying Plaintiff as the exclusive source of goods and services offered
under the 3M Marks. Based on the foregoing, the 3M Marks have also become famous among
consumers in the United States.
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25. To strengthen Plaintiff’s common-law rights in and to its famous 3M Marks,
Plaintiff 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. Applied to Life” slogan in a number of Int. Classes, including Int. Class 9 for facial masks
and respirators (the “‘903 Registration”). See Exhibits 3-5.
26. The ‘329, ‘534, and ‘903 Registrations are valid, in effect, and on the Principal
Trademark Register.
27. The ‘329 and ‘534 Registrations are “incontestable” within the meaning of 15
U.S.C. § 1065. Accordingly, the ‘329 and ‘534 Registrations constitute conclusive evidence of:
(i) Plaintiff’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) Plaintiff’s exclusive right to use the 3M Marks throughout
the United States for, inter alia, respirators. Relatedly, the ‘903 Registration constitutes prima
facie evidence of: (i) Plaintiff’s ownership of the “3M Science. Applied to Life” slogan; (ii) the
validity of the “3M Science. Applied to Life” slogan; (iii) the validity of the registration of the
“3M Science. Applied to Life” slogan; and (iv) Plaintiff’s exclusive right to use the “3M Science.
Applied to Life” slogan throughout the United States for, inter alia, respirators (the “3M Slogan”).
28. Plaintiff’s famous 3M Marks do more than identify Plaintiff as the exclusive source
of goods and services offered thereunder. Indeed, 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’
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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.
D. Plaintiff’s Extensive Efforts to Assist With the Battle Against COVID-19
29. 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
Plaintiff states on the homepage of its website, it is “committed to getting personal protective
equipment to healthcare workers”:
30. Among the PPE that 3M is providing to the heroic individuals on the front lines of
the battle against COVID-19 are Plaintiff’s 3M-brand N95 respirators.
31. Inset, below, is an image of Plaintiff’s 3M-brand, Model 8210 respirator:
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32. Authentic N95 respirators reduce exposure to airborne biological particles and
liquid contamination when appropriately selected, fitted, and worn.
33. Based on the exponential increase in demand for 3M-brand N95 respirators,
Plaintiff has invested the necessary capital and resources to double its global annual production of
1.1 billion 3M-brand N95 respirators. See Exhs. 1,2 What 3M has not done, though, is increase
its prices. See id.
34. Unfortunately, certain third parties do not share 3M’s sense of civic responsibility
during this time of crisis. Indeed, opportunistic third parties are seeking to exploit the increased
demand for Plaintiff’s 3M-brand N95 respirators by offering to sell them for exorbitant prices,
selling counterfeit versions of them, and accepting money for 3M-brand N95 respirators despite
not having the product to sell and/or never intending to deliver the product to the unwitting buyer—
in many instances, a public authority, such as the City of New York, which struggles to address
the enormous financial and logistical challenges presented by COVID-19.
35. Accordingly, to protect consumers on the front lines of the COVID-19 battle from
deception and inferior products, to reduce time wasted by governmental officials on scams, as well
as to protect the widespread reputation and goodwill enjoyed by Plaintiff’s carefully curated 3M
brand, Plaintiff 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 2019, 3M’s Chief Executive Officer, 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,
additional examples of 3M’s efforts to combat price-gouging, counterfeiting, and other unlawful
conduct during COVID-19 include:
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a. 3M posted on its website the list price for its 3M-brand N95 respirators so that
consumers can readily identify price-gouging (See Exhibit 6);
b. 3M created a form on its website that consumers can use to report suspected
incidents of price-gouging and counterfeiting (See Exhibit 7); and
c. 3M created a fraud “hotline” that consumers can call to report suspect incidents of
price-gouging and counterfeiting:
II. Defendant’s Unlawful Conduct
36. Despite Plaintiff’s extensive measures to combat price-gouging and counterfeiting
of its 3M-brand N95 respirators, these illicit activities continue. Defendant is a prime example of
this unlawful behavior, which is damaging to the 3M brand and public health.
37. On or about March 30, 2020 – while New York City was reporting record numbers
of COVID-19 positive tests and deaths – Defendant emailed a document, titled Formal Quote, to
Ebony Roberson of New York City’s Office of Citywide Procurement. See Exhibit 8.
38. In the Formal Quote, Defendant offered to sell New York City’s Procurement
Office: (i) 2 million 3M-brand, N95 Model 8210 respirators for $6.05 each, and (ii) 5 million 3M-
brand, N95 Model 1860 respirators for $6.35 each. See Exh. 8.
39. In the one-page Formal Quote, Defendant reproduced Plaintiff’s famous 3M marks
nine times. See Exh. 8.
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40. Defendant also attached to the Formal Quote a Technical Specification Sheet for
both Models of 3M-brand N95 respirators that Defendant purportedly had available for sale. See
Exh. 8. Plaintiff’s famous 3M design mark, and 3M Slogan, prominently appeared in the upper
left-hand corner of both Technical Specification Sheets. See id. Plaintiff’s famous 3M design
mark also appeared in the lower left-hand corner of both Technical Specification Sheets. See id.
Additionally, Plaintiff’s famous standard-character 3M mark appeared in the Technical
Specification Sheets. See id.
41. Defendant’s rampant use of the 3M Marks throughout the Formal Quote, combined
with the presence of the Plaintiff’s 3M Marks and 3M Slogan in Technical Specification Sheets,
caused New York City officials to mistakenly believe that Defendant was an authorized distributor
of Plaintiff’s products and/or otherwise had an association or affiliation with Plaintiff and its
products. To be sure, after Defendant sent the Formal Quote to Ms. Roberson, New York City
officials prepared an “Evaluation Request – Bid Document Review” as part of their quality-
assurance measures. See Exh. 8. In the Evaluation Request, New York City officials identified
Defendant as a “vendor” – twice – of 3M-brand, N95 Model 8210 and 1860 respirators. See id.
However, the New York City officials were mistaken. Defendant is not, and never has been, an
authorized distributor or vendor of Plaintiff’s products. Defendant also does not have, and has
never had, an association or affiliation with Plaintiff.
42. Defendant’s Formal Quote also contained false, misleading, and/or deceptive
statements. For example, in the Formal Quote, Defendant 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.” See Exh. 8.
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43. The level of specificity in the above-quoted portion of the Formal Quote, including,
for example, that any purchase order is subject to 3M’s discretionary approval, that 3M allegedly
ships its products CIF, and that 3M will determine the production site for the order, are all false
and likely to mislead and/or deceive a reasonable consumer into believing that Defendant is an
authorized distributor of 3M products and/or has an association or affiliation with 3M. Sadly, in
this case, Defendant’s Formal Quote actually misled and deceived experienced buyers in the
Procurement Office of one of the world’s largest cities into believing that Defendant was an
authorized “vendor” of approximately $45 million-worth of 3M-brand N95 respirators.
44. Another equally detestable element of Defendant’s unlawful conduct is price-
gouging. Defendant’s quote of $6.05 per 3M brand, N95 Model 8120 respirator is approximately
600% over 3M’s suggested list price of $1.02-$1.31 per respirator. See Exh. 3. Defendant’s quote
of $6.35 per 3M brand, N95 Model 1860 respirator is 500% increase over 3M’s list price of $1.27
per respirator. See Exh. 3.
45. The mere association of 3M’s valuable brand with such shameless price-gouging
harms the brand, not to mention its more serious threat to public health agencies that are under
strain in the midst of a worldwide pandemic.
46. Based on the foregoing, Plaintiff seeks relief against Defendant for federal and state
trademark infringement, unfair competition, false association, false endorsement, false designation
of origin, trademark dilution, false advertising, and deceptive acts and business practices.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
(Trademark Infringement Under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1))
(Infringement of the Federally Registered 3M Marks and 3M Slogan)
47. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 46 of the Complaint as though set forth fully herein.
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48. Count I is a claim for trademark infringement under 15 U.S.C. § 1114.
49. Plaintiff is the exclusive owner of each of the federally registered 3M Marks, and
the 3M Slogan.
50. Plaintiff has the exclusive right to use each of the 3M Marks, and the 3M Slogan,
in United States commerce for, inter alia, advertising, promoting, offering for sale, and selling
Plaintiff’s 3M-brand N95 respirators.
51. Plaintiff’s exclusive rights in and to each of the 3M Marks, and the 3M Slogan,
predate any rights that Defendant could establish in and to any mark that consists of “3M” in whole
and/or in part.
52. Both of the 3M Marks, and the 3M Slogan, are fanciful and/or arbitrary when used
for respirators and, therefore, are inherently distinctive.
53. Both of the 3M Marks, and the 3M Slogan, identify Plaintiff as the exclusive source
of products offered under the 3M Marks (including, without limitation, 3M-brand N95 respirators)
and, therefore, the 3M Marks, and the 3M Slogan, have acquired distinctiveness.
54. Defendant is using the 3M Marks, and the 3M Slogan, in commerce to advertise,
promote, offer for sale, and sell 3M-brand N95 respirators, including, for example, in the Formal
Quote.
55. Defendant’s use of the 3M Marks, and the 3M Slogan, in commerce on, for, and/or
in connection with the advertising, promotion, offering for sale, and/or sale of products, as alleged,
herein, is causing, and is likely to continue causing, consumer confusion, mistake, and/or deception
about whether Defendant is 3M, and/or whether Defendant is a licensee, authorized distributor,
and/or affiliate of 3M and/or products that Plaintiff offers under its 3M Marks and/or 3M Slogan,
including, without limitation, 3M-brand N95 respirators.
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56. Defendant’s use of the 3M Marks, and the 3M Slogan, in commerce on, for, and/or
in connection with the advertising, promotion, offering for sale, and/or sale of products, as alleged,
herein, is causing, and is likely to continue causing, consumer confusion, mistake, and/or deception
about whether Defendant and/or Defendant’s products are affiliated, connected, and/or associated
with 3M and/or products that Plaintiff offers under its 3M Marks and/or 3M Slogan, including,
without limitation, 3M-brand N95 respirators.
57. Defendant’s use of the 3M Marks, and the 3M Slogan, in commerce on, for, and/or
in connection with the advertising, promotion, offering for sale, and/or sale of products, as alleged,
herein is causing, and is likely to continue causing, consumer confusion, mistake, and/or deception
about whether Defendant and/or Defendant’s products originate with, and/or are sponsored or
approved by, and/or offered under a license from, 3M or vice versa.
58. Plaintiff has not consented to the use of its famous 3M Marks, or 3M Slogan, by
Defendant.
59. Based on Plaintiff’s longstanding and continuous use of its 3M Marks, and 3M
Slogan, in United States commerce, as well as the federal registration of Plaintiff’s 3M Marks, and
3M Slogan, Defendant had actual and constructive knowledge of Plaintiff’s superior rights in and
to the 3M Marks, and the 3M Slogan, when Defendant began using the 3M Marks, and the 3M
Slogan, as part of its bad-faith scheme to confuse and deceive consumers, as alleged, herein.
60. Upon information and belief, Defendant adopted and uses the 3M Marks, and the
3M Slogan, in furtherance of Defendant’s willful, deliberate, and bad-faith scheme of exploiting
the extensive consumer goodwill, reputation, fame, and commercial success of products that
Plaintiff offers under its 3M Marks, and its 3M Slogan, including, without limitation, 3M-brand
N95 respirators.
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61. Upon information and belief, Defendant has made, and will continue to make,
substantial profits and gain from its unauthorized use of Plaintiff’s 3M Marks, and 3M Slogan, to
which Defendant is not entitled at law or in equity.
62. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute trademark infringement in violation of 15 U.S.C. § 1114(a).
63. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law. The damage suffered
by Plaintiff is exacerbated by the fact that Defendant is advertising and offering for sale 3M-
branded N95 respirator masks at exorbitantly inflated prices during a global pandemic when
Plaintiff’s products are necessary to protect public health. Such conduct has inspired intense public
criticism of the manner in which Plaintiff’s respirator masks are being distributed and sold during
the COVID-19 pandemic and significant confusion about Plaintiff’s role in the marketplace for
masks that are essential to safeguarding public health. Whereas Plaintiff’s corporate values and
brand image center around the application of science to improve lives, Defendant’s conduct
imminently and irreparably harms Plaintiff’s 3M brand.
64. Plaintiff has no adequate remedy at law.
SECOND CLAIM FOR RELIEF
(Unfair Competition, False Endorsement, False Association, and False Designation of Origin
Under Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A))
(Use of the 3M Marks and 3M Slogan)
65. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 64 of the Complaint as set forth fully herein.
66. Count II is a claim for federal unfair competition, false endorsement, false
association, and false designation of origin under 15 U.S.C. § 1125(a)(1)(A).
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67. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute unfair competition, false endorsement, false association, and/or false designation of
origin in violation of 15 U.S.C. § 1125(a)(1)(A).
68. Upon information and belief, Defendant’s use of Plaintiff’s famous 3M Marks, and
3M Slogan, to advertise, market, offer for sale, and/or sell purported 3M-brand N95 respirators to
consumers at exorbitant prices, in general, and during a global pandemic such as COVID-19,
specifically, also constitutes unfair competition in violation of 15 U.S.C. § 1125(a)(1)(A).
69. Defendant has also falsely held itself out to be an agent of and/or authorized by
Plaintiff to sell and/or distribute 3M-branded products, when this is not the case.
70. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law.
71. Plaintiff has no adequate remedy at law.
THIRD CLAIM FOR RELIEF
(Trademark Dilution Under Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c))
(Dilution of the Famous 3M Marks)
72. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 71 of the Complaint as though set forth fully herein.
73. Count III is a claim for federal trademark dilution under 15 U.S.C. § 1125(c).
74. Plaintiff’s 3M Marks were famous before and at the time Defendant began using
the 3M Marks in commerce on, for, and/or in connection with the advertising, promotion, offering
for sale, and/or sale of products (including, without limitation, 3M-brand N95 respirators).
75. Defendant’s use of Plaintiff’s famous 3M Marks in commerce on, for, and/or in
connection with the advertising, promotion, offering for sale, and/or sale of products (including,
without limitation, 3M-brand N95 respirators) is likely to dilute the distinctive quality of the
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famous 3M Marks, such that famous 3M Marks’ established selling power and value will be
whittled away.
76. Defendant’s use of Plaintiff’s famous 3M Marks in commerce on, for, and/or in
connection with the advertising, promotion, offering for sale, and/or sale of products (including,
without limitation, 3M-brand N95 respirators) is likely to dilute the distinctive quality of the
famous 3M Marks, such that famous 3M Marks’ ability to identify Plaintiff as the exclusive source
of products offered under the 3M Marks (including, without limitation, Plaintiff’s 3M-brand N95
respirators) will be whittled away.
77. Defendant’s use of Plaintiff’s famous 3M Marks in commerce on, for, and/or in
connection with the advertising, promotion, offering for sale, and/or sale of products (including,
without limitation, 3M-brand N95 respirators) at exorbitant prices, in general, and during a global
pandemic such as COVID-19, specifically, is likely to dilute the reputation of the famous 3M
Marks, such that famous 3M Marks’ established ability to indicate the superior quality of Products
offered under such Marks (including, without limitation, Plaintiff’s 3M-brand N95 respirators),
will be whittled away.
78. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute trademark dilution in violation of 15 U.S.C. § 1125(c).
79. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law. The damage suffered
by Plaintiff is exacerbated by the fact that Defendant is advertising and offering for sale 3M-
branded N95 respirators at exorbitantly inflated prices during a global pandemic when Plaintiff’s
products are necessary to protect public health. Such conduct has inspired intense public criticism
of the manner in which Plaintiff’s respirators are being distributed and sold during the COVID-19
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pandemic and significant confusion about Plaintiff’s role in the marketplace for respirators that are
essential to safeguarding public health. Whereas Plaintiff’s corporate values and brand image
center around the application of science to improve lives, Defendant’s conduct imminently and
irreparably harms Plaintiff’s 3M brand.
80. Plaintiff has no adequate remedy at law.
FOURTH CLAIM FOR RELIEF
(False Advertising Under Section 43(a)(1)(B) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B))
(Defendant’s Formal Quote)
81. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 80 of the Complaint as though set forth fully herein.
82. Count IV is a claim for false and deceptive advertising under 15 U.S.C.
§ 1125(a)(1)(B).
83. The statements that Defendant made in its Formal Quote constitute commercial
advertising and/or commercial promotion.
84. The statements that Defendant made in its Formal Quote contained false,
misleading, and/or deceptive statements about the nature, characteristics, qualities, and/or
geographic origin of Defendant and/or the products that Defendant allegedly had available for sale.
85. The statements that Defendant made in its Formal Quote contained false,
misleading, and/or deceptive statements about the nature, characteristics, qualities, and/or
geographic origin of Plaintiff and Plaintiff’s 3M-brand products, including, without limitation,
Plaintiff’s 3M-brand N95 respirators.
86. The false, misleading, and/or deceptive statements in Defendant’s Formal Quote
were material to New York City’s purchasing decisions, including, without limitation, its
preparation of the aforementioned Evaluation Request, wherein officials mistakenly identified
Defendant as a “vendor” of 3M-brand N95 respirators, twice.
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87. Defendant placed its Formal Quote into interstate commerce by, inter alia, sending
it to at least one New York City official’s email account, namely, Ms. Roberson.
88. Defendant’s Formal Quote directly and/or proximately caused and/or is likely to
cause Plaintiff to suffer harm in the form of lost sales (including, without limitation, lost sales of
Plaintiff’s 3M-brand N95 respirators), as well as irreparable diminution to the 3M brand and 3M
Marks’ reputation, fame, and goodwill.
89. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute false advertising in violation of 15 U.S.C. § 1125(a)(1)(B).
90. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law. The damage suffered
by Plaintiff is exacerbated by the fact that Defendant is advertising and offering for sale 3M-
branded N95 respirator masks at exorbitantly inflated prices during a global pandemic when
Plaintiff’s products are necessary to protect public health. Such conduct has inspired intense public
criticism of the manner in which Plaintiff’s respirator masks are being distributed and sold during
the COVID-19 pandemic and significant confusion about Plaintiff’s role in the marketplace for
masks that are essential to safeguarding public health. Whereas Plaintiff’s corporate values and
brand image center around the application of science to improve lives, Defendant’s conduct
imminently and irreparably harms Plaintiff’s 3M brand.
91. Plaintiff has no adequate remedy at law.
FIFTH CLAIM FOR RELIEF
(Deceptive Acts and Practices Under NEW YORK GENERAL BUSINESS LAW § 349)
(Use of the 3M Brand, Famous 3M Marks, and 3M Slogan; Defendant’s Formal Quote)
92. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 91 of the Complaint as though set forth fully herein.
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93. Count V is a claim for deceptive acts and practices under NEW YORK GENERAL
BUSINESS LAW (“GBL”) § 349.
94. By using Plaintiff’s 3M Marks, and 3M Slogan, to confuse consumers during a
global pandemic, such as COVID-19, about the source, price, availability, quality, and/or origin
of 3M-brand N95 respirators, Defendant’s conduct poses a direct and/or proximate threat to the
health and safety of the general public, including consumers within this District. For example,
because of Defendant’s use of Plaintiff’s famous 3M Marks, and 3M Slogan, throughout the
Formal Quote, New York City officials mistakenly believed that Defendant was an authorized
vendor of 3M-brand N95 respirators. Based on the mistaken belief that Defendant was an
authorized distributor of 3M-brand N95 respirators, New York City officials took steps to commit
approximately $45 million-worth of critical resources during the height of COVID-19 to
purchasing products from Defendant (including, for example, preparing the Evaluation Request).
Accordingly, Defendant’s acts and conduct complained of herein go above and beyond ordinary
trademark infringement.
95. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute deceptive acts and practices in violation of GBL § 349.
96. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law.
97. Plaintiff has no adequate remedy at law.
SIXTH CLAIM FOR RELIEF
(False Advertising Under NEW YORK GENERAL BUSINESS LAW § 350)
(Defendant’s Formal Quote)
98. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 97 of the Complaint as though set forth fully herein.
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99. Count VI is a claim for false advertising under GBL § 350.
100. By creating the false, misleading, and/or deceptive impression that Defendant was
an authorized distributor of 3M-brand N95 respirators during the height of COVID-19,
Defendant’s conduct poses a direct and/or proximate threat to the health and safety of the general
public, including consumers within this District. For example, the false, misleading, and/or
deceptive statements in Defendant’s Formal Quote misled and deceived New York City officials
into believing that Defendant was an authorized distributor of 3M-brand N95 respirators. Based
on the mistaken belief that Defendant was an authorized distributor of 3M-brand N95 respirators,
New York City official took steps to commit approximately $45 million-worth of critical resources
during the height of COVID-19 to purchasing products from Defendants (including, for example,
preparing the Evaluation Request). Accordingly, Defendant’s acts and conduct complained of
herein go above and beyond ordinary false advertising.
101. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute false advertising in violation of NEW YORK GENERAL BUSINESS LAW § 350.
102. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law.
Plaintiff has no adequate remedy at law.
SEVENTH CLAIM FOR RELIEF
(Dilution and Injury to Business Reputation Under NEW YORK GENERAL BUSINESS LAW § 360-l)
(Dilution of, Injury to the 3M Brand, Famous 3M Marks, and 3M Slogan)
103. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 102 of the Complaint as though set forth fully herein.
104. Count VII is a claim for dilution under GBL § 360-l.
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105. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute dilution and injury to business reputation in violation of GBL § 360-l.
106. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law.
107. Plaintiff has no adequate remedy at law.
EIGHTH CLAIM FOR RELIEF
(Trademark Infringement Under New York Common Law)
(Infringement of the 3M Marks and 3M Slogan)
108. Plaintiffs repeat and incorporate by reference the statements and allegations in
paragraphs 1 - 107 of the Complaint as though set forth fully herein.
109. Count XIII is a claim for trademark infringement under New York common law.
110. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute trademark infringement in violation of New York common law.
111. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law.
112. Plaintiff has no adequate remedy at law.
NINTH CLAIM FOR RELIEF
(Unfair Competition and Passing Off Under New York Common Law)
(Use of the 3M Marks and 3M Slogan)
113. Plaintiff repeats and incorporates by reference the statements and allegations in
paragraphs 1 - 112 of the Complaint as though set forth fully herein.
114. Count IX is a claim for unfair competition under New York common law.
115. Upon information and belief, Defendant’s acts and conduct complained of herein
constitute unfair competition and passing off in violation of New York common law.
116. Plaintiff has suffered, and will continue to suffer, irreparable harm from
Defendant’s acts and conduct complained of herein, unless restrained by law.
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117. Plaintiff has no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, based on Defendant’s conduct complained of, herein, Plaintiff asks that
this Court:
A. To enter an Order, finding in Plaintiff’s favor on each Claim for Relief asserted
herein;
B. Pursuant to 15 U.S.C. § 1116:
1. Preliminarily and permanently enjoining Defendant, its agents, servants,
employees, officers and all persons and entities in active concert and participation with them from
using the 3M Marks (or any other mark(s) confusingly similar thereto) 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 respirator Marks;
2. Preliminarily and permanently enjoining Defendant, its agents, servants,
employees, officers and all persons and entities in active concert and participation with them from
falsely representing itself as being a distributor, authorized retailer, and/or licensee of Plaintiff
and/or any of Plaintiff’s products (including, without limitation, Plaintiff’s 3M-brand N95
respirator) and/or otherwise falsely representing to have an association or affiliation with,
sponsorship by, and/or connection with, Plaintiff and/or any of Plaintiff’s products; and
3. Ordering Defendant to file with the Court and serve upon Plaintiff’s counsel, within
30 days after service of the order of injunction, a report in writing under oath setting forth in detail
the manner and form in which Defendant has complied with the injunction;
C. Pursuant to 15 U.S.C. § 1117:
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1. Order Defendant to provide Plaintiff with a full accounting of all manufacture,
distribution and sale of products under the 3M Marks (including, without limitation, Plaintiff’s
3M-brand N95 respirators), as well as all profits derived therefrom;
2. Order Defendant to pay to Plaintiff—so as to be donated charitably pursuant to
subpart G, infra—all of Defendant’s profits derived from the sale of infringing goods offered under
the 3M Marks (including, without limitation, Plaintiff’s 3M-brand N95 respirators);
3. Award Plaintiff treble actual damages—so as to be donated charitably pursuant to
subpart G, infra—in connection with Defendant’s infringement of the 3M Marks;
4. Find that Defendant’s acts and conduct complained of herein render this case
“exceptional”; and
5. Award Plaintiff—so as to be donated charitably pursuant to subpart G, infra—its
costs and reasonable attorneys’ fees incurred in this matter;
D. Pursuant to 15 U.S.C. § 1118, order the destruction of all unauthorized goods and
materials within the possession, custody, and control of Defendant and Defendant’s client that
bear, feature, and/or contain any copy or colorable imitation of Plaintiff’s 3M Marks;
E. Award Plaintiff pre-judgment and post-judgment interest against Defendant;
F. Award Plaintiff such other relief that the Court deems just and equitable; and
G. Requiring that all monetary payments awarded to Plaintiff be donated to a COVID-
19 charitable organization(s)/cause(s) of Plaintiff’s choosing.
DEMAND FOR JURY TRIAL
Plaintiff requests a trial by jury for all issues so triable pursuant to FED. R. CIV. P. 38(b)
and 38(c).
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Dated: April 10, 2020
New York, New York MAYER BROWN LLP
/s/ A. John P. Mancini
A. John P. Mancini
Andrew J. Calica
Jordan Sagalowsky
Jonathan W. Thomas
1221 Avenue of the Americas
New York, New York 10020-1001
Tel.: (212) 506-2500
Email: JMancini@mayerbrown.com
Email: ACalica@mayerbrown.com
Email: JSagalowsky@mayerbrown.com
Email: JWThomas@mayerbrown.com
Richard F. Bulger (to apply pro hac vice)
Richard M. Assmus (to apply pro hac vice)
Kristine M. Young (to apply pro hac vice)
71 South Wacker Drive
Chicago, Illinois 60606
Tel.: (312) 782-0600
Email: RBulger@mayerbrown.com
Email: RAssmus@mayerbrown.com
Email: KYoung@mayerbrown.com
Carmine R. Zarlenga (to apply pro hac vice)
1999 K Street, NW
Washington, D.C. 20006
Tel.: (202) 263-3000
Email: CZarlenga@mayerbrown.com
Attorneys for Plaintiff 3M Company
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Reg. No. 5,469,903 3M Company (DELAWARE CORPORATION)
220-9e-01
Registered May 15, 2018 3m Center, 2501 Hudson Road
St. Paul, MINNESOTA 55144
Int. Cl.: 1, 2, 3, 4, 7, 8, 9, CLASS 1: Adhesives for industrial use; body fillers for autobody use
11, 16, 17, 21
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
Trademark CLASS 2: Coatings for protecting surfaces against moisture, corrosion, contaminants and
other conditions
Principal Register
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 3: Cleaning, polishing, scouring and abrasive preparations and substances; abrasives
for industrial and domestic use; preparations for cleaning, polishing, glazing, waxing,
restoring or preserving finished surfaces of motorized vehicles
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 4: Industrial lubricants
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 7: Abrasive belts, discs, pads, sheets and wheels for power-operated sanders and
grinders
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 8: Sanding blocks
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 9: protective safety facial masks, respirators other than for artificial respiration for
domestic and industrial use
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 11: Filtering devices, namely, filters for commercial use for use in the purification of
air
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 16: Stationery notes containing adhesive on one side for attachment to surfaces; tape
flags; adhesive tape dispensers for household, office or stationery use
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FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 17: Adhesives tapes and adhesive tape dispensers for industrial or commercial use;
duct tapes; electrical tapes; masking tapes; mounting tapes for household and commercial use;
adhesive foam tapes, double sided adhesive tapes, all for industrial purposes; adhesive backed
plastic films for industrial and commercial use
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
CLASS 21: Scouring, cleaning and scrubbing sponges, and pads
FIRST USE 2-23-2018; IN COMMERCE 2-23-2018
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY
PARTICULAR FONT STYLE, SIZE OR COLOR
OWNER OF U.S. REG. NO. 3241340, 0561157, 0405413
SER. NO. 86-344,821, FILED 07-22-2014
Page: 2 of 3 / RN # 5469903
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PERFORMANCE SUPPLY LLC
FORMAL QUOTE
TO: Ms. Ebony P. Roberson
Buyer
Office of Citywide Procurement
Telephone: +1 (212) 386-0466
ERoberson@dcas.nyc.gov
1. 3M Particulate Respirator 8210, N95 160 EA/Case
Product Specification: : https://www.3m.com/3M/en_US/company-us/all-3m-products/~/3M-
Particulate-Respirator-8210-N95-160-EA-Case/?N=5002385+3294780268&rt=rud
2. 3M Health Care Particulate Respirator 1860, N95 120 EA/Case
Product Specification: https://www.3m.com/3M/en_US/company-us/all-3m-products/~/3M-Health-
Care-Particulate-Respirator-and-Surgical-Mask-1860-N95-120-EA-
Case/?N=5002385+3294795990&rt=rud
3. Country of Origin: TBD
4. Headquarters: St. Paul, Minnesota, USA
5. Quantity: 8210 – 2 Million
1860 – 5 Million
6. Price: 8210 – $6.05/mask
1860 – $6.35/mask
7. Payment Terms: No upfront deposits are required. Instead, Buyer sends Purchase Order first -- and
once that is accepted by the factory – financial closing terms will be mutually agreed. Payment in full
must be made upon receipt of Each shipment Net 15 days.
8. Shipping: 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 plants in the USA or 3M Plants Overseas according to their manufacturing
schedule. 3M chooses the plant. Order may be shipped in whole or in part.
9. Buyer will not terminate or reject delivery for 3M Masks after Quality Assurance inspection and
products are authenticated, verified and meet 3M specifications which are indicated and agreed by the
formal quote and purchase order.
10. Please address Purchase Order to:
Mr. Ron Romano, President
Performance Supply, LLC
P.O. Box 672
Englishtown, NJ 07726
Via 3BP, Inc
POST OFFICE BOX 672
ENGLISHTOWN, NJ 07726
Telephone: +1 (732) 685-6403
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3M™ Particulate Respirator
8210, N95
Key Features
• NIOSH approved N95 rating
• Adjustable nose clip
• Nose foam
• Ultrasonically welded headbands
Material Composition
• Straps – Thermoplastic Elastomer
Do Not Use For
• Nose Clip – Aluminum
• DO NOT use for gases and vapors, oil
• Nose foam - Polyurethane
aerosols, asbestos, arsenic, cadmium,
• Filter – Polypropylene
lead, 4,4-methylene dianiline (MDA), or
• Shell – Polyester
abrasive blasting
• Coverweb - Polyester
• DO NOT use for particulate
• This respirator contains no components
concentrations exceeding 10X PEL/OEL
made from natural rubber latex
• DO NOT use in any manner not indicated
• Approximate weight of product: 0.35 oz.
in the User Instructions
Country of Origin
Approvals and Standards
Made in the USA with globally sourced
• NIOSH approved N95 particulate
materials
respirator
Use For • Meets NIOSH 42 CFR 84 N95
• Use for solid particulates and liquid mists requirements for a minimum 95%
in concentrations not exceeding 10X filtration efficiency against solid and
PEL/OEL liquid aerosols that do not contain oil.
• Always follow User Instructions and use • NIOSH approval number: TC-84A-0007
in manners as indicated • Assigned Protection Factor (APF 10) per
US OSHA and Canada CSA
Ordering Information
Respirators/
Description UPC ID # Boxes/Case Each/Case
Box
Particulate
Respirator 50051138464573 70-0706-1439-4 20 8 160
8210
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Time Use Limitation Acceptable Fit Test Protocols
Replace the respirator when it becomes
dirty, damaged, or difficult to breathe Acceptable with
Fit Test Protocol*
through. this product?
Saccharin ☒
Shelf Life and Storage
• 5 years from the date of manufacture BitrexTM ☒
• Use By date on box in MM/YYYY format Qualitative
Protocols Irritant
• Store respirators in the original ☐
Smoke
packaging, away from contaminated Isoamyl
areas, dust, sunlight, extreme Acetate
☐
temperatures, excessive moisture, and
damaging chemicals Quantitative Protocols ☒
• Store in temperatures between -4°F *Refer to OSHA 1910.134
(-20°C) and +86°F (+30°C) and not
exceeding 80% RH
WARNING!
This respirator helps reduce exposures to
certain airborne contaminants. Before use,
the wearer must read and understand the
User Instructions provided as a part of the
product packaging. Follow all local
regulations. In the U.S., a written respiratory
protection program must be implemented
meeting all the requirements of OSHA
1910.134, including training, fit testing and
medical evaluation. In Canada, CSA standard
Z94.4 requirements must be met and/or
requirements of the applicable jurisdiction,
as appropriate. Misuse may result in
sickness or death. For correct use, consult
supervisor and the User Instructions or call
3M PSD Technical Service in USA at 1-800-
243-4630 and in Canada at 1-800-267-
4414.
Personal Safety Division
3M Center, Building 0235-2W-70
For More Information
St. Paul, MN 55144-1000
Technical Assistance 1-800-243-4630
3M.com/workersafety
Hours of Operation: M-Th 8am - 6pm, Fri 8am - 4:30 pm CST
© 3M 2018. All rights reserved.
3M PSD products are occupational use only.
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3M™ Health Care Particulate
Respirator and Surgical Mask,
1860, N95
Key Features
• NIOSH approved N95 rating
• FDA cleared for use as a surgical mask
• Fluid Resistant 120 mmHg
• Flammability Rating Class I
• Adjustable nose clip
• Braided and stapled headbands
Material Composition
• Straps – Braided Polyisoprene
• Staples - Steel
• Nose Clip – Aluminum
Do Not Use For
• Nose Foam – Polyurethane Foam
• DO NOT use in industrial settings
• Filter – Polypropylene
• DO NOT use for gases or vapors (i.e.
• Shell – Polyester
anesthetic gases such as isoflurane or vapors
• Coverweb - Polypropylene
from sterilants such as glutaraldehyde.)
• Not made with natural rubber latex
• DO NOT use in any manner not indicated in the
• Approximate weight of product: 0.40 oz.
User Instructions
Country of Origin
Approvals and Standards
Made in the USA with globally sourced materials
• NIOSH approved N95 respirator
Use For • Meets NIOSH 42 CFR 84 N95 requirements
• Intended to be worn by operating room for a minimum 95% filtration efficiency against
personnel during surgical procedures to help solid and liquid aerosols that do not contain oil.
protect both the surgical patient and the • NIOSH approval number: TC-84A-0006
operating room personnel from transfer of • FDA cleared for use as a surgical mask
microorganisms, body fluids, and particulate • Health Canada Class I medical device
material. • Bacterial Filtration Efficiency F2101 >99% BFE
• Always follow User Instructions and use in • Assigned Protection Factor (APF 10) per US
manners as indicated OSHA and Canada CSA
Ordering Information
Respirators/
Description UPC ID # Boxes/Case Each/Case
Box
Health Care
Particulate
50707387419429 70-0706-1236-4 20 6 120
Respirator,
1860
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Time Use Limitation Acceptable Fit Test Protocols
Respirator may be used until damaged, breathing
becomes difficult or contaminated with blood or Acceptable with this
Fit Test Protocol*
body fluids. Discard after every use when used for product?
surgical procedures. Follow national, state, local, Saccharin ☒
and facility infection control guidance and policies. BitrexTM ☒
Qualitative
Shelf Life and Storage Protocols Irritant
☐
• 5 years from the date of manufacture Smoke
• Use By date on box in YYYY-MM-DD format Isoamyl
☐
• Store respirators in the original packaging, Acetate
away from contaminated areas, dust, sunlight, Quantitative Protocols ☒
extreme temperatures, excessive moisture, and
damaging chemicals *Refer to OSHA 1910.134
• Store in temperatures between -4°F
(-20°C) and +86°F (+30°C) and not exceeding
80% RH
WARNING!
This respirator helps protect against certain
particulate contaminants but does not eliminate
exposure to or the risk of contracting any disease
or infection. Before use, the wearer must read and
understand the User Instructions provided as a part
of the product packaging. Follow all local
regulations. In the U.S., a written respiratory
protection program must be implemented meeting
all the requirements of OSHA 1910.134, including
training, fit testing and medical evaluation. In
Canada, CSA standard Z94.4 requirements must
be met and/or requirements of the applicable
jurisdiction, as appropriate. Misuse may result in
sickness or death. For correct use, consult
supervisor and the User Instructions, or call 3M
Health Care in USA at 1-800-228-3957 and in
Canada at 1-800-267-4414.
Infection Prevention Division
3M Health Care
2510 Conway Avenue
St. Paul, MN 55144-1000 3M is a trademark of 3M Company
Please recycle. Printed in U.S.A
1-800-228-3957 © 3M 2017. All rights reserved.
3M.com/medical
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The National Personal Protective Technology Laboratory
(NPPTL)
NIOSH-Approved N95 Particulate Filtering Facepiece
Respirators
For information about Coronavirus Disease 2019, visit
https://www.cdc.gov/coronavirus/2019-ncov/index.html.
Manufacturers Listed Alphabetically – 3M
The N95 respirator is the most common of the seven types of particulate ltering facepiece respirators. This product lters at
least 95% of airborne particles but is not resistant to oil.
This web page provides a table of NIOSH-approved N95 respirators, listed alphabetically by manufacturer. You can select a
particular manufacturer by clicking on the rst letter of their name on the index below.
There are some products that are approved by NIOSH as an N95 respirator and also cleared by the Food and Drug
Administration (FDA) as a surgical mask. These products are referred to as Surgical N95 Respirators. View a de nition of
Surgical N95 Respirators. For your convenience the Surgical N95 Respirators are indicated with the Model Number/Product
Line in bold text followed by (FDA). If you have a product you believe is NIOSH-approved and FDA-cleared that does not
appear on this list, you will need to check with the FDA Center for Devices and Radiological Health at 1-800-638-2041 for
validation of clearance. View a comprehensive table of Surgical N95 Respirators.
Disclaimer: The links in this section go to websites outside of CDC/NIOSH and should not be considered as an endorsement of
their content, or as a statement of NIOSH policy. The donning procedure and/or user instruction, either on the websites or
the PDF version, should not be considered an o cial endorsement of their content, or as a statement of NIOSH policy.
Index: 3M A B C D E F G H I J K L M N O P Q R S T U V W X Y Z Notes
Model
Supplier/Manufacturer and Contact Number/Product Approval Valve Manufacturer’s Donning
Information Line Number Yes/No Procedure User Instructions
3M Company 1860 (FDA) 84A-0006 No 1860, 1860S [PDF – 72 KB]
888-3M HELPS or web form 1860S (FDA)
(Distribution Availability )
3M Company 8110S 84A-0007 No 8210 [PDF – 103 KB]
888-3M HELPS or web form 8210 8110S, 8210, 7048 [PDF – 187
(Distribution availability for all 8210 Plus KB]
products listed for 3M ) 8216
8217
7048
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Particulate Respirators
8210 and 8110S, N95
Issue Date 01/01/04
The 3MTM Particulate Respirator
8210, N95 is designed to help
provide quality, reliable worker
protection against certain non-oil
based particles. The 3MTM
Particulate Respirator 8110S, N95
offers the same protection for
those workers with smaller faces.
The 8210 and the 8110S offer a
number of benefits to you and
your workers.
NIOSH approved N95
• At least 95% filtration efficiency
against solid and liquid aerosols that
do not contain oil.* TC-84A-0007
Advanced Electret Media
• Advanced electrostatically charged
microfibers make breathing easier
and cooler.
3MTM Particulate Respirator 8210, N95
Helps provide worker protection (Inset photo: 3MTM Particulate Respirator 8110S, N95)
• Because they are comfortable to
wear and easy to use, workers are Suggested Applications
quick to accept and use maintenance-
free respirators, like the 8210 and • Grinding
8110S. Studies have shown they can • Sanding
provide protection equivalent to a • Sweeping
rubber facepiece respirator…at much • Bagging ! WARNING
lower cost and greater convenience. • Other dusty These respirators help reduce exposure to certain
particles. Misuse may result in sickness or death.
Lightweight construction operations Before use, the wearer must read and understand
• Woodworking User Instructions provided as a part of product
• Promotes greater worker comfort. packaging. Time use limitations may apply. For
• Contributes to increased wear time. • Foundries proper use, see package instructions, supervisor
or call 3M OH&ESD Technical Service in U.S.A.,
1-800-243-4630. In Canada, call 1-800-267-4414.
Adjustable noseclip
• Helps provide a custom fit
and secure seal.
• Reduces the potential for
eyewear fogging.
*Tested against particles approximately 0.3 micron in size (mass median aerodynamic diameter) per 42 CFR 84.
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3MTM Particulate Respirators 8210 and 8110S, N95 page 2 of 2
Respirators Per Box Technologies
8210 & 8110S Respirators Per Case
20 160
Use For: Important
• Solids such as those from Before using these respirators, Advanced Electret Media
Advanced electrostatically charged
processing minerals, coal, you must determine the following: microfibers make breathing easier
iron ore, flour, and certain 1. The type of contaminant(s) and cooler.
other substances. for which the respirator is
• Liquid or non-oil based being selected. Additional Information
particles from sprays that do 2. The concentration level This respirator contains no
not also emit harmful vapors. of contaminant(s). components made from natural
3. Whether the respirator can be rubber latex.
Do Not Use For:
properly fitted on the wearer’s
Gases and vapors, including those
face. Do not use with beards,
present in paint spray operations,
on other facial hair, or other
asbestos, arsenic, cadmium, lead,
conditions that prevent a good
4,4'-methylenedianiline (MDA) or
seal between the face and the
sandblasting. Aerosol concentrations
faceseal of the respirator.
that exceed 10 times the OSHA
4. Before use of these respirators, For more information, please contact:
PEL, or applicable exposure
a written respiratory protection
limits, whichever is lower. This 3M Occupational Health and
program must be implemented, Environmental Safety Division
respirator does not supply oxygen.
meeting all the requirements (OH&ESD)
of OSHA 29 CFR 1910.134, In the U.S., contact:
including training, medical Sales Assistance
1-800-896-4223
evaluation and fit testing.
Technical Assistance
1-800-243-4630
Time Use Limitation Fax On Demand
1-800-646-1655
If respirator becomes damaged, Internet
soiled, or breathing becomes http://www.3M.com/occsafety
difficult, leave the contaminated For other 3M products
1-800-3M HELPS
area immediately and dispose of
the respirator. In Canada, contact:
3M Canada Company, OH&ESD
P.O. Box 5757
London, Ontario N6A 4T1
Sales Assistance
1-800-265-1840, ext. 6137
Technical Assistance (Canada only)
1-800-267-4414
Fax On Demand
1-800-646-1655
Internet
http://www.3M.com/CA/occsafety
Technical Assistance In Mexico
01-800-712-0646
5270-2255, 5270-2119 (Mexico City only)
Technical Assistance In Brazil
3M Occupational Health and Environmental Safety Division 0800-132333
3M Center, Building 235-2W-70 Fax On Demand O.U.S. Locations
1-651-732-6530
St. Paul, MN 55144-1000
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Health Care
Particulate Respirator
and Surgical Mask
User Instructions
(Keep these instructions for reference)
Meets CDC guidelines for Mycobacterium tuberculosis exposure control.
1860/1860S
1
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This respirator helps protect against certain particulate contaminants but does not eliminate exposure to
or the risk of contracting any disease or infection. Misuse may result in sickness or death. For proper
use, see supervisor, or User Instructions, or call 3M in U.S.A., 1-800-247-3941. In Canada, call
Technical Service at 1-800-267-4414.
IMPORTANT
Before use, the wearer must read and understand these User Instructions. Keep these instructions for
reference.
DESCRIPTION
The 3M™ 1860 Health Care Particulate Respirator and Surgical Mask is designed to help provide
respiratory protection for the wearer. This product has a filter efficiency level of 95% or greater against
particulate aerosols free of oil1. It is fluid resistant, disposable and may be worn in surgery. It can fit a
wide range of face sizes.
This product contains no components made from natural rubber latex.
INTENDED USE: This product meets CDC guidelines for Mycobacterium tuberculosis exposure control.
As a respirator, it is intended to reduce wearer exposure to certain airborne particles in a size range of 0.1
to >10.0 microns, including those generated by electrocautery, laser surgery, and other powered medical
instruments. As a surgical mask, it is designed to be fluid resistant to splash and spatter of blood and
other infectious materials; when worn properly and in combination with protective eyewear, it complies
with the OSHA Bloodborne Pathogens Standard. It also provides >99% BFE 2 against wearer generated
micro-organisms.
CONTRAINDICATIONS: Not for industrial use. Not for use with beards or other facial hair that
prevents direct contact between the face and the sealing surface of the respirator. OSHA has not set a
permissible exposure level for airborne biohazards.
USE INSTRUCTIONS:
1. Before use for respiratory protection, a written respiratory protection program must be implemented
meeting all requirements of OSHA 29 CFR 1910.139 and/or 1910.134 such as medical evaluation,
training and fit testing. In Canada, CSA standard Z94.4 requirements must be met. The 3M
saccharin (sweet) or Bitrix™ (bitter)qualitative fit test is recommended for this respirator. When used
only as a surgical mask, fit testing is not required.
2. Respirator may be used until damaged, breathing becomes difficult, or contaminated with blood or
body fluids. Otherwise, it may be stored and reused according to the facility’s infection control policy.
3. Filtering facepieces are to be inspected prior to each use to assure there are no holes in the breathing
zone other than the punctures around staples and no damage has occurred. Enlarged holes resulting
from ripped or torn filter material around staple punctures are considered damage. Immediately
replace respirator if damaged. Staple perforations do not affect NIOSH approval.
4. Discard after every use when used for surgical procedures.
1
Tested against a 0.3 micron particle (count median diameter) per 42 CFR 84.
2
Bacterial Filtration Efficiency (BFE) determined by the modified Greene and Vesley test method.
2
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Fitting Instructions (Must be followed each time respirator is worn)
Fig. 1 Fig. 2 Fig. 3 Fig. 4
1. Cup the respirator in your hand, with the nosepiece at your fingertips, allowing the headbands to hang
freely below your hand.
2. Position the respirator under your chin with the nosepiece up. Pull the top strap over your head
resting it high at the top back of your head. Pull the bottom strap over your head and position it
around the neck below the ears.
3. Place your fingertips from both hands at the top of the metal nosepiece. Using two hands, mold the
nose area to the shape of your nose by pushing inward while moving your fingertips down both sides
of the nosepiece.
! Pinching the nosepiece using one hand may result in improper fit and less effective respirator
performance. Use two hands.
4. Perform a User Seal Check prior to each wearing. To check the respirator-to-face seal, place both
hands completely over the respirator and exhale. Be careful not to disturb the position of the
respirator. If air leaks around nose, readjust the nosepiece as described in step 3. If air leaks at the
respirator edges, work the straps back along the sides of your head.
If you CANNOT achieve proper seal, DO NOT enter the isolation or treatment area. See your
supervisor.
Removal Instructions
See step 2 of Fitting Instructions and cup respirator in hand to maintain position on face. Pull bottom
strap over head. Still holding respirator in position, pull top strap over head and remove respirator.
3
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NIOSH Approved: N95
At least 95% filtration efficiency against solid and liquid aerosols that do not contain oil.
3M
ST. PAUL, MN, USA
1-800-243-4630
THIS RESPIRATOR IS APPROVED ONLY IN THE FOLLOWING CONFIGURATION:
TC- Protection 1 Respirator Cautions and Limitations 2
1860 1860S
84A-0006 N95 X X ABCJMNOP
1. PROTECTION
N95 - Particulate Filter (95% filter efficiency
level) effective against particulate aerosols
free of oil; time use restrictions may apply
2. CAUTIONS AND LIMITATIONS
A - Not for use in atmospheres containing less than 19.5 percent oxygen.
B - Not for use in atmospheres immediately dangerous to life or health.
C - Do not exceed maximum use concentrations established by regulatory standards.
J - Failure to properly use and maintain this product could result in injury or death.
M - All approved respirators shall be selected, fitted, used, and maintained in accordance with MSHA, OSHA, and other applicable regulations.
N - Never substitute, modify, add, or omit parts. Use only exact replacement parts in the configuration as specified by the manufacturer.
O - Refer to user's instructions, and/or maintenance manuals for information on use and maintenance of these respirators.
P - NIOSH does not evaluate respirators for use as surgical masks.
This respirator contains no components made from natural rubber latex.
FOR MORE INFORMATION and assistance on 3M occupational health and environmental safety
products, contact your local 3M representative or call 3M OH&ESD Technical Service toll free in U.S.A.,
1-800-243-4630. In Canada, call Technical Service at 1-800-267-4414.
Exported by/Exporté par/Exportado por:
3M Occupational Health and Environmental
Safety Division
3M Center, Building 235-2W-70
P.O. Box 33010
St. Paul, MN 55133-3010
Made in U.S.A.
©3M 2002 38-9017-7547-8
4
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Evaluation Request- Bid Document Review
Technical Services/Quality Assurance
EBONY P ROBERSON 212-386-0466 3/30/2020
(EROBERSON@dcas.nyc.gov)
Procurement Analyst Tel. Date
RASHAD LE MONIER
Purchase Director
Description of Document for Review:
Bid #: COVID-19 RELATED PURCHASE (M3 Masks – 8210 and 1860)
Title:
Specific Concerns:
To ensure that the specifications provided by the vendor adhere to all applicable standards
(FDA, CDC,NIOSH etc.) Thank you.
The vendor Performance Supply, LLC is offering the COVID-19 related purchase (M3
Masks – 8210 and 1860)
FDA creates regulatory Exemptions for Masks and respirator in response to the COVID-19
and critical PPE shortages: On March 25, 2020, the Food and Drug Administration (FDA)
issued a temporary policy relating to enforcement of regulatory requirements for face
masks and respirators during the COVID-19 crisis. Since the public health emergency
began, the United States has experienced a shortage of masks, respirators, and other
personal protective equipment (PPE) which are critically needed for health care workers
caring for COVID-19 patients in all states. FDA previously created emergency use
authorizations for NIOSH-approved disposable respirators for use in health care setting
and imported non-NIOSH-approved disposable respirators, but the temporary enforcement
policy represents an attempt to open the manufacturing, importation, and distribution flood
gates to make more masks and respirators available as quickly as possible.
The policy is limited to face mask and respirator products classified under 21 C.F.R.
&&878.4040, 880.6260 (product code FXX,OXZ,OUK,MSH,ONT,ORW, and NZJ), and
FDA divides these products into three main categories: (1) face masks and N95
respirators not intended for a medical purpose; (2) face masks intended for a medical
purpose but not to provide liquid barrier protection; and (3) surgical masks intended to
provide liquid barrier protection. Wwwmintz.com
OCP-BQA (Rev. 5/30/14)
Case
Case
1:20-cv-02949-JLR-JW
1:20-cv-02949-JLR-JW Document
Document48-1
1-8 Filed
Filed04/10/20
01/13/23 Page
Page
1571
of of
1571
Analysis revealed that both items: 3M Masks 1860 and 3M Masks 8210 provide
necessary protection for front line medical and non-medical personnel. Since, it is not
scientifically proven against the COVID-19; it is important to recognize that the optimal way
to prevent airborne transmission is to use a combination of interventions from across the
hierarchy of controls, not just PPE alone. Therefore, these submitted disposable 3M
Masks 1860 and 8210 specifications are substantially in compliance with the NYC
Specification.
Please - Identify commodity concerns
- Include pertinent user agency concerns and requirements
Daniel Ortega (Quality Assurance Analyst)
____________________________________________Date 3-31-2020_______
OCP-BQA (Rev. 5/30/14)