Abbott Says Ex-Worker Using TMs To Sell COVID-19 Tests

By Lauraann Wood
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Law360 (October 20, 2020, 5:22 PM EDT) -- Abbott Laboratories filed a new lawsuit Tuesday asking an Illinois federal judge to stop a former employee from using its name, trademarks and private information to sell COVID-19 diagnostic tests that were made by other companies.

Abbott says former employee Justin Brown was fired in April for falsifying expense records but has continued to use his work equipment and a deceptive email address to falsely associate himself with the company.

"Brown was aware that there is a high likelihood of confusion arising from his use of Abbott's registered and common law marks and used them nonetheless," the company wrote.

The pharmaceutical giant claims Brown's attempt to "palm off" the competing products had already and would likely continue to unlawfully confuse its customers. It asked the court to enjoin Brown from continuing his "repeated and flagrant" conduct, claiming it would be irreparably damaged while he continues to earn "undeserved income, profits and business opportunities" if he isn't stopped.

Abbott released its first U.S.-authorized COVID-19 diagnostic test after receiving the green light from the U.S. Food and Drug Administration to market the product in March. Most recently, the company received federal approval in August to market a miniature testing device that costs $5, provides results in 15 minutes and is no larger than a credit card, according to the lawsuit.

Brown was initially hired in 2015 by Abbott's predecessor, Alere Inc., but Abbott hired Brown again after it bought Alere in 2017 to strengthen its diagnostics presence, according to the lawsuit. The employment agreement Brown signed upon working for Abbott required him to protect the company's confidential information, refrain from competing with it during and for the year after his employment and return all of its property — including its intellectual property — once he no longer worked for the company, according to the lawsuit.

Brown was a strategic business executive for Abbott's diagnostics unit when his manager uncovered irregularities in his expense reporting in 2019, according to the lawsuit. But before the company could interview him as part of its investigation into the issue, he said he needed to take military leave to fulfill his duties with the United States Navy Reserve.

But Brown's claim that he had military obligations turned out to be a lie, and he was in reality working for a Texas-based company called Equipment Management Service and Repair from May 2019 through that November, the suit said. Abbott fired Brown in April and made multiple demands that he return its property, but Brown has refused, the company claims.

Brown used an email address while he worked for Abbott but registered the domain and created an email address associated with that site two days after he was fired, according to the lawsuit.

He used the "abbottdx" email address and an email signature containing Abbott's trademarked name and logo, as well as the actual address of its Orlando offices, to contact company customers including Advent Health and Johns Hopkins Medicine, the suit said.

"The overall design of Brown's email signature block is confusingly similar to the email signature block designed by Abbott for use by its employees," Abbott claimed.

Brown pretended to be continuing his duties for Abbott when he tried to sell customers coronavirus tests and testing equipment made by Bloom Diagnostics and LuminUltra, the company claimed. That confused customers into thinking Abbott had sponsored or approved those products, and Brown's attempt to sell them, the suit said.

Abbott claims Brown's conduct violates the Lanham Act, Defend Trade Secrets Act and Anticybersquatting Consumer Protection Act. The company also says its former employee's actions constitute a breach of contract, common law fraud and unjust enrichment.

Brown and representatives for Abbott did not immediately respond Tuesday to requests for comment.

Abbott and its diagnostic center are represented by Ronald Safer, Louis Klapp, Mariangela Seale and Valerie Brummel of Riley Safer Holmes & Cancila LLP.

Counsel information for Brown could not immediately be determined.

The case is Abbott Laboratories et al. v. Justin Brown, case number 1:20-cv-06211, in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Adam Lidgett. Editing by Peter Rozovsky.

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