Screenshot of website www.dripstonellc.com selling the respirator face masks named BYD KN95.

Updated with comment from defendant Dripstone on 6/24/15 at 4:15 pm PT.

The Chinese company that contracted with California to provide respirator masks to supply hospitals and first responders has sued several individuals, accusing them of attempting to sell alleged counterfeits. 

BYD Company LTD, which struck a $1 billion deal with California Gov. Gavin Newsom in April, filed suit Monday in U.S. District Court for the Northern District of California, claiming that four named individuals and one California company were selling products under its "BYD" and "BYD Care" trademarks.

The complaint claims that the individuals and the company, Los Angeles-based Dripstone LLC, offered customers BYD-branded N95 masks, though they were not authorized by the company to sell the masks and there was no feasible way for them to have procured the amount they were offering. The N95 respirator is a type of mask that is certified to filter at least 95% of airborne particles and has been in short supply due to demands created by the global pandemic. BYD itself just received approval from the National Institute for Occupational Safety and Health, the federal agency which certifies the efficiency of the masks, earlier this month.

"Defendants know the dire need for respirator masks and other healthcare products to safeguard the health of the American public and exploit[ed] it for their own financial gain," wrote BYD's lawyers at Akin Gump Strauss Hauer & Feld. "When Defendants falsely advertise the N95 respirator masks as being manufactured by BYD, they are deceiving the customers into believing that the masks will function to the specifications required by the government to protect the person ultimately wearing the mask from contracting COVID-19," they wrote. "When these masks are counterfeit, the consequences can literally be deadly."

The complaint brings claims under the Lanham Act and the state law of trademark dilution, false advertising, and unfair competition. The suit seeks to bar the defendants from using the BYD trademarks and holding themselves out as distributors of BYD products. The suit also seeks any profits from the defendants' sales "to be donated charitably."

Dripstone was offering BYD-branded face masks for sale via its website as of 12:10 p.m. PT Tuesday, but as of 1:30 p.m. PT the site said, "There are no products to list in this category" under face masks. 

Daniel Kern, who is listed as the CEO of Dripstone on his LinkedIn page, said in a phone interview Wednesday that the company had been unfairly lumped in with alleged counterfeiters. He said his company had been selling KN95 masks, masks meant for general rather than medical use that don't necessarily meet the government standards required of N95 masks.

Kern said that BYD had originally produced the masks for the Chinese market and his company was unaware that it needed to be an authorized reseller to offer them in the U.S. He estimated that the company had only made about $3,000 profit from sales. Kern also said that the company had received inquiries from doctors about the masks, but declined to sell to them because they were not appropriate for use in a medical setting.

"We don't really deal with masks," he said. "Never did we think we were going to get a lawsuit."