Items which are printed can easily embed the famous trademark of another without permission. The ability to do so is facilitated by the fact that technology has made it so easy to copy such marks. As 3D printing gets cheaper, unlawful use of the technology may be made on a larger scale. Even though in a primitive stage, one may print clothing bearing the trademark of a famous company. 3D printed packaging, boxes or related material may contain a trademark. Various kinds of printed accessories may also include the same. However, many jurisdictions, such as Canada and the U.S. require some form of ‘use’ of a trademark.[1]  Therefore not all use may violate trademark laws such as the Canadian Trade-marks Act or the U.S. Lanham Act. Canadian law requires ‘use in association with goods or services’ as U.S. law requires ‘use in commerce’. However, liability under counterfeiting laws may nevertheless attach.

Copyright concerns are also raised by this technology as material which is printed using a 3D printer may violate copyrighted works of art or other copyright material by . Copyright may easily be violated by using this technology to print material at the expense of the copyright holder. Whereas traditional printers are capable of printing copyright works such as those including words, pictures and books, 3D printers can pose many additional possibilities such as artistic work in the form of small statues, moveable objects or other more technically advanced forms of creation over and above that which can be created using ink on paper.

Patent law is another area of intellectual property that may be affected by the 3D printing technology. One example of this is by using ‘CAD files’ or other technology . It is expected that, as the 3D printing technology evolves, it will become possible or even easier to print objects which are covered under a particular patent, without permission. For example, one may prepare the necessary ‘blueprint’ to print a patented object .

This year, the and webcasts relating to IP legal issues surrounding 3D printing. Some novel issues raised include the extent of ‘human’ liability where ‘machines’ are in use and doing some of the work. Issues of ‘induced and contributory infringement’ have been raised as have concerns relating to ‘if a new CAD file is created through reverse engineering’. Many questions remain unanswered from the legislative and case law points of view.
However, it is yet to be seen how defences such as ‘fair use’ will play a role in the context of 3D printing. This will require Courts or arbiters of intellectual property disputes to consider how these defences will work in such scenarios, including consideration of any intellectual property utilized and, where relevant, the use which is made of the 3D items printed.

It is clear from advances and expected advances in this area that many intellectual property legal concerns are raised by 3D printing. As far as the future of 3D printing is concerned, it is a matter of time before what violation once occurred mainly in factories would be done right at home on a larger scale. At the same time, it would be interesting to see how current law evolves to adapt to this new technology including how existing defences would play a role in its development.

Rajeev Sachdev is a Professor, Researcher, California Lawyer, and English Solicitor. He also holds several degrees including a Masters in Law and an MBA.

[1] See U.S. Lanham Act 1946 15 U.S.C. §1051 et seq (as amended), and the Canadian Trade-marks Act, R.S.C., 1985, c. T-13.

[2] See U.S. Lanham Act 1946 15 U.S.C. §1051 et seq (as amended), and the Canadian Trade-marks Act, R.S.C., 1985, c. T-13.

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Invented in the 1980’s, 3D printers can create three-dimensional objects using malleable materials, often a liquid resin. Until about the last , the cost to purchase this new technology was well above what average consumers and business owners could afford. But a string of recent innovations — in part thanks to fierce following the expiration of — has made the commercialization of cheap 3D printers seemingly a matter of time. Quality printers can now be bought for .

Transferring manufacturing from the factory to the home is no small cultural shift, and IP stakeholders are understandably concerned (IP lawyer has written a nice overview). Generally their worry is that cheap 3D printers in combination with information technology — the same that has allowed the widespread pirating of music and movies since the internet’s commercialization — will unleash a torrent of new IP infringement.

These fears are not unfounded. Three-dimensional objects find IP value in their design, which can be stored in digital files. Like music or movie files, these designs are easy to share online, but until now have not been thanks to the high costs of manufacturing. That is to say, until now three-dimensional designs have been protected not by the threat of IP laws, but by the inability to make cheap copies. This will soon change.

Historically, when new technology threatens the security of existing intellectual works, there is a tendency to react with legal reform. And not without reason, as IP law has proven a useful weapon against piracy in the past — IP law itself was originally developed in reaction to the printing press.[1]

But the law is not always a useful tool in these fights. The most recent example of this is the entertainment industry’s response to the digital pirating of copyrighted materials in the late 1990’s, which consisted of legal reform campaigns and publicized lawsuits against file sharing services (such as the case that shut down Napster,[2] one of the first successful file sharing services). Neither accomplished their desired effect, however, and despite the time and money put into these strategies, digital piracy remains an issue today.

This example demonstrates the limit of IP law: enforcement. Without a practical regime for enforcing IP rights, there is little to dissuade all digital copying. For example, in the case of the entertainment industry, the law was useful when attacking centralized services, like Napster, which stored files on internal servers, but it has failed to stop new decentralized services, which store files on the computers of individual users.

These decentralized services, rather than providing pirated files, provide the ability for users to connect with one another and share the files they already hold. Because these services are easy to replace and the files difficult to replace, for a legal injunction to efficiently prevent this sharing it would need to somehow target every individual user. An attempt to shut down one of these services would only result in the quick launching of a replacement— one of the largest file-sharing websites has symbolized this dynamic by displaying on their homepage an image of the multi-headed Hydra.

Given that IP law is unable to fully control digital piracy, and that valuable 3D designs are easily shared, to meet the challenge of 3D printers IP owners should use strategies other than legal reform. Some alternatives have already been explored, such as Digital Rights Management, which attempts to protect IP through technological security measures. However, pirates have largely been able to circumvent this approach.[3] If IP owners want to protect themselves from cheap 3D printers, they should focus their resources on a strategy that pirates cannot corrupt: creating new ways to monetize IP.

Some of the biggest IP success stories of the digital age came from this strategy. For example,a partnership with Apple revitalized the music industry, who made easier than downloading; Hollywood by revamping their international strategy, creating bigger theatre audiences around the world for their big-budget action movies; and both the music and movie industry have seen success using new subscription-fee models that licence IP in bulk, most notably used by Spotify and Netflix. 3D designers could use the same strategies. For example, rather than designing one object for mass-production, they could create subscription-based software that produces multiple custom-tailored objects.

Whichever new business model works best to preserve 3D IP will likely be found only after extensive trial and error. But one thing is clear, when 3D printers permit mass pirating, IP owners should respond by offering a product that cannot be copied.

Matt Wallace is an IPilogue Editor, JD Candidate at University of New Brunswick, and writes on technology law.

1. Adrian Johns, Piracy: the Intellectual Property Wars from Gutenberg to Gates (Chicago: University of Chicago Press, 2009) at 8.

2. E.g. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

3. Hasshi Sudler, "Effectiveness of anti-piracy technology: Finding appropriate solutions for evolving online piracy" (2013) 56 Bus Horizons 149.

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