‘Gee, you look familiar’ — 3M lawsuit claims rival copied packaging

3M Co. sued a Massachusetts company late last week, alleging that it is confusing consumers by copying a package design for special bandages — and has the photos to prove it — or so it hopes.

In a lawsuit filed in U.S. District Court for Minnesota, the Maplewood-based company accused Andover Healthcare of “wholesale appropriation” of 3M’s distinctive packaging design for compression bindings used to treat people with vascular disease called venous hypertension.

3M alleges that Andover Healthcare copied 3M’s packaging design, including product instructions that create “a strong likelihood of confusion, mistake and deception” between Andover Healthcare’s CoFlex 2 binding and 3M’s Coban 2 layer compression bandage.  The suit also alleges false advertising and unfair business practices, according to a press release issued by 3M.

Andover Healthcare did not return a call seeking comment on the lawsuit.

As part of its complaint and exhibits filed with the court, 3M included photos of the offending packaging and also compared the Andover package to distinctly different packaging for similar products from two other vendors, U.K.-based Smith & Nephew and French-based URGO Medical.

Exhibits in 3M vs Andover Health Care

Source: U.S. District Court of Minnesota
Source: U.S. District Court of Minnesota
Source: U.S. District Court of Minnesota

The patent-rich conglomerate, known for aggressive protection of its intellectual property, is not claiming that the product itself violates any patents. At the heart of its suit is protection of 3M’s trade dress, which refers to packaging and appearance.

The same U.S. law that protects trademarks also protects trade dress to prevent imitation and confusion on the part of consumers. For example, the familiar orange and green box filled with multi-colored paper-wrapped wax cylinders is a recognizable trade dress for Crayola crayons.

But instead of budding 8-year old artists, it is patients and health care professionals who may be confused by the similar packaging between 3M’s product and Andover’s. At least that is 3M’s claim.

The competing multi-layered bandages are used to wrap the legs of a patient suffering from improper functioning of valves in the veins, a condition known as venous hypertension. Complications, such as venous (or varicose) ulcers, are painful, and hard-to-heal wounds that can occur in the leg are also treated with the special bandages. Injury, poor circulation, obesity, aging and lack of mobility are all thought to contribute to the condition, which afflicts an estimated 1 percent of the general population, 3.5 percent of those over 65. The condition also strikes women three times as often as men, according to the journal Nursing.

While 3M does not break out specific product-line revenue, it presumably would not have filed a suit unless it thought it worthwhile. 3M’s health care segment is the company’s second largest, generating $4.3 billion of the company’s $23 billion in revenue in 2009. It is also, by far, 3M’s most profitable segment, generating an eye-popping 31.4 percent operating margin, and contributing $1.35 billion of 3M’s $4.8 billion operating profit last year.

The Coban 2 product is one of a large portfolio of 3M health care products, including medical and surgical supplies, skin health and infection prevention products, drug delivery systems, dental and orthodontic products, health information systems and anti-microbial solutions.

Andover Healthcare is a privately held company in Salisbury, Mass. Founded in 1976, the company manufactures and sells a variety of bandages and tapes for the health care, animal health and sports medicine industries.

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