3D Printing and the Trademark Dilemma: Navigating the New Age of Counterfeit
Background:
3D printing is a new technological development that has the potential to transform the manufacturing process[1] and revolutionize the modern world.[2] 3D printing starts with a 3D drawing of the part it will print.[3] Next, a specially designed printer uses a tiny filament to lay down narrow layers of material, building the desired part layer by layer until it is complete.[4] The part is then built up from the ground by adding one thin layer of material at a time.[5] The base of 3D printing technology is known as well-known computer aided design programs (CAD). [6]
3D Printing as a Disruptive Technology:
3D printing is a disruptive technology that could alter the way people currently produce and use products.[7] The term “disruptive technology” is used to define new technological trends that possess significant economic potential while simultaneously replacing older solutions and leading to the decline of traditional business and professions.[8] 3D printing allows for consumers to easily produce day-to-day items such as furniture and clothes,[9] footwear,[10] office materials, toys, tools, and kitchen items.[11] Given its ability to significantly impact economic potential by replacing older methods and changing how consumers produce everyday items, 3D printing clearly stands out as a disruptive technology.
Trademark Law Background:
Trademark law serves two primary purposes: protecting consumers[12] and incentivizing companies.[13] The consumer protection aspect of trademark law prevents consumers from being confused about who the producer of a good is and allows consumers to develop a certain perception about the expected quality of the good.[14] Meanwhile, trademark law also benefits companies by allowing them to control the use of their mark, which encourages companies to invest in their brand, leading to higher quality and potentially greater prestige.[15] The legal system established trademark law to ensure that products or services with distinct qualities have a recognizable sign or expression for protection and identification.[16] The primary role of a trademark is to allow the consumer to easily determine the origin of the product.[17]The source of the product often creates a consumer perception of specific features of the product or an expectation towards the quality of the product.[18] Sometimes, people identify the trademark as a symbol representing characteristics like wealth, social position, fitness, and a healthy lifestyle.[19] In this context, a trademark serves both a quality and advertisement role.[20]
Impact of 3D Printing on Trademark Law:
3D printing democratizes the production process by allowing nearly anyone to manufacture items either from their own designs or from designs available online. However, allowing private entities to “print” objects themselves blurs the line between the producer and manufacturer, leading to reasonable threats of private entities printing fake trademarked goods at home. Many 3D printer owners use previously generated computer designs that are available on the internet.[21] Using previously generated computer designs and sharing models and projects creates a new online ecosystem which will make it more difficult for companies to oversee the use of their products and trademarks.[22] Furthermore, since individuals can use 3D printing at home without involving a professional third party, even regular users can produce counterfeit goods, which shifts the risk of counterfeit from organized criminal groups to everyday households.[23] By using the layer-by-layer method of 3D printing, 3D printed goods can be very high quality, which would make it difficult to distinguish fake trademarked items from the originals. Therefore, one can conclude that this technology may elevate the quality of counterfeit products overall. 3D printing inherently supports counterfeiting because it relies on a dataset of an object, such as a CAD file.[24] By using a CAD file, users can easily share, exchange and locate complete projects of various items on online platforms with some possibly even available for free.[25] The ease of accessing numerous complete projects online indicates that professional counterfeiters might sell files online, which underscores how 3D printing equips ordinary users with advanced tools that can potentially lead them to engage in counterfeiting and brand infringement.[26] Therefore, companies may start to lose control over the use of their trademarks. While addressing a single trademark infringement might not be profitable for businesses to pursue in court, the ease, speed, and affordability of 3D printing could escalate the infringement issue.
Solution:
The accelerating pace of technological development will only escalate this problem as time goes on. To help combat this problem, trademark owners should create their own 3D-printable files.[27] Selling certified files could help businesses adapt to the new technology-driven and 3D printable landscape. This strategy of companies selling their own certified files could aid businesses in maintaining their technological relevance and even generate revenue, considering some consumers might even prefer purchasing certified files at a reasonable price. Additionally, companies could offer additional perks with their certified files, such as access to exclusive products. Selling certified files also benefits the companies, by eliminating the need to manufacture the entire product, which saves on production and overhead costs. However, this solution is based on the assumption that 3D printing will become more accessible to ordinary people. If 3D printers become more widespread and companies permit individuals to use certified files, the counterfeit market could diminish in significance. People might not see the value in buying counterfeit goods when they can print trademarked items from a certified file at a reasonable price. But for now, you’ll have to get in line for your designer item instead of getting a leather cartridge for your 3D printer.
Footnotes
