3M, the country's largest producer of crucial N95 masks, filed lawsuits against two companies for trying to resell millions of its N95 masks at more than four times the original price. While the lawsuits do not accuse the company of selling counterfeit masks or masks that were improperly imported, 3M does claim that the companies misled buyers into thinking the prices were authorized by 3M. Law360 contacted Finnegan partner Mark Sommers for his thoughts on the trademark implications of price gouging.
Mark said, “While price gouging may not be technically illegal under the Lanham Act for traditional trademark infringement, the law prohibits tricking a consumer into believing that the sale of a price-gouged product was somehow approved or authorized by the manufacturer.”
Mark also commented on how high-profile trademark battles can result in good press. He said, “The public sees a company standing up against what they view as an unethical and unconscionable money-grab for [personal protective equipment] needed by our nation's health care workers battling the pandemic on the frontlines, and that publicity is worth every penny, legal merits aside."
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