Canada: No Glasses Required: 3D Printing And The Current Canadian IP Framework

3D printing is now being used to create everything from personalized body parts to personalized bobbleheads. While the potential applications of 3D printing are immense, these applications also raise many legal questions, and create several challenges as organizations adapt to this new technology, particularly challenges related to the protection of intellectual property (IP).

3D printing, also known as "additive manufacturing", is a process of creating a three-dimensional object from a digital model by successively "adding" together layers of material in the shape of a desired object. 3D printing is in contrast to traditional machining processes which are "subtractive" and rely on the removal of material.

Although having hallmarks of science fiction, 3D printing is actually based on technology developed as early as the late 1970s. The first patents for 3D printing as we currently know it were filed in the early 1980s. However, due to its cost and its industrial origins, 3D printing has only recently become an accessible technology. One traditional use of 3D printing has been in rapid prototyping, which allows a computer-aided design (CAD) file to be transformed, in short order, into a prototype of the actual object being designed. An obvious advantage of 3D printing is the ability to iterate during the design process by quickly creating a realistic model, making changes, and successively perfecting the design before investing in the actual manufacturing equipment.

More recently, due to increased availability and quality, along with a decrease in cost, 3D printing has caught the attention of hobbyists and consumers alike. The prominence of 3D printing has, in large part, been driven by this hobbyist market. Consequently, the hobbyist's desire to create quirky objects like personalized bobblehead dolls or superhero action figures, or replicate commercial objects, could very well be driving a revolution in manufacturing, distribution, and inventory control.

Many believe that 3D printing will drastically change the way things are manufactured. Since 3D printing allows objects to be printed from a scan of the original or a CAD model of the design, manufacturing could become even more distributed with 3D printers being placed wherever a product is sold, with local demand being met by simply printing more when needed. If goods are being produced closer to where they are purchased, this could affect the countries in which one seeks IP protection. Depending on how distributed the manufacturing is, this could amount to either a more straightforward, or a more complex, IP strategy.

Along with distributed manufacturing are aspects of just-in-time production, customization, and replacement. It is not only conceivable that manufacturers will be able to print their products at the point of sale, but also be able to personalize the product to create a unique customer experience. Replacement parts could also become available in short order and in remote locations. For example, imagine being able to 3D print a critical part on an off-shore oil rig and mitigate costly downtime.

New business models may also be possible. Similar to digital music, we may face a world where only the IP is sold and distributed. For example, IP rights holders may be able to sell a licence to make their invention (i.e., the instructions) rather than have to invest in costly manufacturing and distribution. This could decrease the cost of entry for individuals and small or mid-sized entities. At the other end of the design cycle, parts for older or discontinued models could be "archived" by saving the digital file rather than the parts themselves.

Rapid prototyping, short design cycles, distributed production, customization and personalization will undoubtedly allow products to come to market much quicker than in the past. These benefits will also be more widely felt as 3D printing technology becomes cheaper, more accessible and faster. The IP system will need to keep up with these rapid developments.

If 3D printing proves to be this disruptive, many questions are left unanswered, such as how the use of 3D printing will be regulated, and whether current IP laws are sufficient to protect IP rights holders. The current IP framework is designed to control activity at key points in the traditional manufacturing and supply chains. Any time a disruptive technology comes onto the scene, the application of IP laws is challenged. This has been the case with the photocopier, the VCR, and, most recently, peer-to-peer file sharing over the Internet. Most of those technologies have presented the strongest challenge to copyright laws, and it is no different in the case of 3D printing.


The Copyright Act (Canada) expressly states that, subject to certain exceptions, it is not an infringement to reproduce the design of an article which has a utilitarian function by making a copy of that article (or a drawing of that article) where the original article was reproduced in a quantity greater than 50. Essentially, the Copyright Act denies protection to designs which have been industrially applied.

From a practical perspective, most consumer products are captured by this exception to infringement. However, the exception does not extend to artistic works or those products which are produced in a quantity less than 50. So, for example, a local artisan who makes "one of a kind" jewelry or pottery could enjoin the reproduction of her designs. By contrast, a large manufacturer of cookware might not.

Copyright would, subject to the usual conditions, subsist in blueprints or other plans of a manufacturer related to an article. Accordingly, a rights holder could enjoin the reproduction and distribution of such plans.

We are accustomed to situations related to copying and illegal sharing of music, video, and software files over the Internet, as well as the efforts of rights holders and industry bodies to curtail or stop those activities. Those cases focused almost exclusively on copyright, and related rights, as the main IP existing in those classes of works. However, the type of reproduction which is possible as a result of 3D printing means that a broader range of products may be copied. As a result, other IP rights could come into play.


There is often some confusion between the impact of patents for 3D printing itself, i.e., how 3D printing works, and the impact of 3D printing on patented objects. These are very different considerations.

First, as discussed above, 3D printing is not exactly new. The first meaningful developments were in the late 1970s and early 1980s and any potentially dominating patents have expired. Even a second wave of patented improvements from the early 1990s is set to expire in the next year or two. Therefore, the impact of 3D printing patents will be different than comparable "replication" technologies such as photocopying and instant film where the technology remained expensive until the initial patents expired. In other words, patents should not slow down the evolution of 3D printing itself.

Instead, recent advances and a more competitive market have made 3D printing cheaper and more accessible. There could still be opportunities to secure valuable patent protection, but not necessarily in the dominating sense. When it comes to patents, 3D printing is thus more comparable to desktop publishing or digital music. Consequently, patents for 3D printing technology should not have the same impact as the ability to 3D print patented objects.

3D printing has created the ability to print a part or object using digital CAD files or even by scanning the desired object. This ability is the biggest threat to patent protection. If something is patented, and capable of being 3D printed, presumably anyone can make their own copy and infringe that patent. Many feel that this would allow the consumer to conveniently reproduce patented objects, in the same way consumers can download, burn, rip, and share digital music.

Similar to what happened in the music industry, some fear that this means that a patentee will need to sue potential customers, i.e., the consumers. Perhaps patentees will need to protect the way in which objects are 3D printed, such as the software instructions. If these instructions are being distributed to the consumer, the patentee could then enforce its patent against the distributor of the software. The issue is that the patent system does not currently contemplate this type of protection. Will a new form of patent protection be needed? At the very least, the impact of 3D printing on an invention should be considered when drafting a patent application.

With the ability to scan and 3D print an object, another consideration is how the IP system will deal with personal copies. For example, should a company be able to make an emergency back-up part for critical machinery? Similarly, should a consumer be able to make a copy of a hand tool to have a spare in the car? Perhaps a personal copy provision will need to be considered for patented objects, similar to copyright.

3D printing, at least for the consumer, is currently limited to relatively simple objects. Therefore, perhaps the threat is not as severe as sometimes proclaimed. Also, does the average consumer have access to the necessary material to make a legitimate copy of a patented object? The thought of being up on a 40-foot ladder that was 3D printed in the garage earlier that day is not exactly comforting.


Design protection could very well be the way to protect against infringements facilitated by 3D printing. Designs generally protect the "look and feel" of an object, such as its shape, pattern, ornamentation, and configuration. Since 3D printing enables 3D objects to be reproduced, assuming the reproduction has the same design, a design patent or industrial design registration could be the most cost-effective way to obtain IP protection for a physical product. Companies that do not traditionally use design protection, most notably when the aesthetics of the object are not important, should be giving design protection a closer look. There is no specific unregistered design protection available under Canadian law.

Designs also have limitations that should be carefully considered. The protection provided in a design is typically quite rigid in that for infringement to occur, the infringing object must be substantially the same in its look and feel as the protected design. One of the major benefits of 3D printing is its ability to customize the design to suit a particular user, for example, a hand tool that fits to a particular consumer's hand. This benefit is a potential threat to design protection since customization could change the design just enough to avoid infringement. Consequently, variants shown in the design and what portions of the object are protected, should be more carefully considered. For example, by envisioning how the design could change when customized, a design application can be tailored to either capture suitable variants or protect the portions of the object that are unlikely to change with the customization.


As previously mentioned, there is no specific protection under Canadian law for unregistered designs. However, in the minds of consumers, designs often become source identifiers and may serve a trade-mark function. Accordingly, if a rights holder is able to demonstrate that a particular design enjoys sufficient reputation as to warrant common law trade-mark protection, it might be in a position to enjoin the sale or offering for sale of articles which are confusingly similar to the original article on the basis of passing off.

Designs can also be the subject of a Canadian trade-mark registration. However, to register a three-dimensional design of an object, the Canadian Intellectual Property Office requires that an applicant establish that the design has acquired distinctiveness (or secondary meaning) in Canada. This is typically accomplished by providing evidence of significant sales, and advertising, of products bearing that design.

Obviously, to the extent that a 3D printed article displays the trade-mark of another, for example, embedded in or embossed on the article, the sale or offering for sale of that article would violate the rights of the trade-mark owner or its licensees. However, to the extent the product is printed by the ultimate user, enforcement may require legal proceedings against individual (and prospective) customers.


Disruptive technologies have threatened IP rights before but many have found ways to flourish within a new environment created by the disruptive technologies. The same should hold for 3D printing, as long as the IP system can provide the adequate protection needed.

For now, 3D printing really only affects the producers of simple objects and therefore the idea that anything can be 3D printed may be premature. For these relatively simple but patentable objects, it is worth considering how the object is made, not just how it looks or how it operates. Designs should also be given additional consideration, even for products and parts that normally would not warrant a consideration of design protection. Producers may also want to educate consumers on the advantages of the "genuine" article and incorporate mechanisms to identify "authentic" articles, for example, embossing a trade-mark into the product where appropriate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
13 Dec 2017, Seminar, Toronto, Canada

Class actions across Canada continue to grow in volume and complexity, triggering significant policy and financial implications for businesses in Canada. With the Law Commission of Ontario’s recent announcement that it is reactivating its comprehensive review of class actions in Ontario, we may see important law reform on the horizon to evolve with the changing landscape.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions