3D Printing and Intellectual Property

Hub Dohmen, Lawyer at Dohmen Advocaten
Hub Dohmen, Lawyer at Dohmen Advocaten

How exactly do 3D printing and intellectual property work? What is actually considered intellectual property with respect to 3D printing? Plenty of things can be told about the various types of intellectual property in relation to 3D printing; herewith Hub Dohmen provides a brief overview.

Identification marks on 3D printed products
Firstly, there is trademark protection applied to the product in the form of identification marks (a word or a logo). The aim of a brand is to distinguish the product or the service  from similar products or services offered by competitors. Trademark law has four types of infringement, all of which are related to use of the trademark. If you do not use the trademark meaning, by printing a trademarked product without using the trademark you cannot infringe on the trademark. Please note in this respect that some trademarks, called ‘shape trademarks’, protect the shape of the product as a trademark, which is the case with the famous Duracell battery for example.

The following is useful to know if one wants to limit consumers who print the (trademarked) items with the trademark on them: typically, you cannot pursue this with a consumer, because ‘use for economic purposes’ must be at play. The consumer can actually only commit trademark infringement if his or her print has damaged the reputation of the trademark, e.g. by printing out Nikes that are clearly falling apart.

Exterior of the 3D printed product
The exterior of the product can be protected by design right or copyright, as well as by trademark (such as the shape trademark). A good example of design right protection for the exterior of a product is the now classic TomTom GO 300.

Furthermore, in the Netherlands, there is something called ‘slaafse nabootsing’ (‘slavish imitation’) which is called ‘wettbewerbswidrige Nachahmung’ or ‘sklavische Nachahmung’ in Germany, and known as ‘passing off’ in common-law countries such as England, Australia, and New Zealand. Intellectual property does not actually apply to this since it is not an absolute right based on a separately arranged intellectual property law. What does apply however is the general civil-law concept of ‘unlawful competition’.

Hub Dohmen’s law firm ‘Dohmen advocaten’ consists of legal specialists who have all had a technical, design or art education and also have work experience in these fields. The firm specializes in Intellectual Property, IT and Technology, and Art.

Further to ‘slavish imitation’, there is something called ‘compatibility jurisprudence’, which Lego had trouble with when they wanted to pursue a competitor who manufactured blocks that could be attached to Legos. The competitor was still permitted to make toy blocks that could fit into Legos: minor differences were sufficient to prevent confusion. The adage of ‘minor differences are sufficient’ also applies to design right in models that are largely defined by technology, as was the case with the storm-proof Senz umbrella.

Regarding the current situation of protection for the exterior by means of copyright or design right and the 3D printing of spare parts it is important to make a distinction between whether an entire protected model  or copyrighted work is being printed or only a spare part with a purely technical function. Purely technical elements are not subject to design right or copyright, not even when it involves a design-protected part of a larger whole. The ‘repair clause’ that appeared in Dutch legislation as a result of the European Design Directive for example aims at preventing things, for example that a car manufacturer controls repair works by controlling the parts market, which would make competition in the market impossible.

And note that design right is not directed at the consumer, who is  at least in Europe  expressly excluded from the design right sphere of influence and therefore cannot infringe upon it.

Technology in the printed product
Technology can also be protected. A patent protects an invention, which can be a new technical product or a new technical method. In 3D printing it is certainly imaginable that one may print a product that is protected by a patent. However, the following also applies: a patent holder can only pursue cases involving commercial use or production of the invention. An individual that recreates an invention has not infringed upon the patent.

Is a website that, without the permission of the patent holder, scans patented products and offers the CAD files for a few Euros violating the patent? Not directly, since a CAD file is not a product. It is possible though that indirect patent violation has occurred, specifically by (loosely translated and summarised) the provision of means both suitable and intended to violate a patent.

Stay tuned to learn more about the legal implications of 3D printing.