UK: 3D Printing - Your IP Strategy Against Unauthorised Copying

Last Updated: 21 November 2013
Article by Jonathan Jackson

From time to time, we see the emergence of completely new and un-envisaged technology being suddenly made available to consumers. Whilst, from one perspective, such blue-sky innovation is obviously to be applauded, this type of innovation is often referred to as 'disruptive technology'. This is because such innovations usually challenge and disrupt the current state of the law (which was inevitably drafted without the new technology having been envisaged). 3D printing is the latest such disruptive technology.

In the next few years, 3D printers are expected to be found in many homes across Europe and otherwise to be widely publicly available. 3D printers allow consumers to 'build' complex products using layers of sometimes different materials. Recently, a working gun was produced using this technique. A national newspaper in the UK also tested the technology to successfully produce a copy of a designer pair of shoes.

The blueprints for the complex products are provided in an electronic form and can be downloaded over the Internet.

With such a combination of a 3D printer in a consumer's home and a blueprint that can be simply downloaded over the Internet, manufacturers need to consider how to protect their products from unauthorised copying.

In particular, manufacturers need to consider how their range of intellectual property rights can be used to stop such unauthorised reproductions.

Copyright

In the UK, copyright (an unregistered right in the UK) may exist in the artistic elements of the produced 3D object. However, the scope of this protection is limited as physical objects can only be protected as sculptures, works of artistic craftsmanship or works of architecture. Clearly, this restricted coverage is not sufficient protection given the wide range of products that may be produced by a 3D printer.

However, copyright will exist in the electronic blueprint which is originally used to create the 3D artistic object. This protection is similar to the protection given to other artistic works such as music downloaded over the Internet.

Therefore, in theory, manufacturers may sue customers for downloading the blueprints for designs and also sue those third parties storing the blueprints on their server.

In reality, however, this approach is unlikely to be particularly successful. Indeed, over the years, many music companies have found that taking group actions against individual consumers has simply led to bad publicity and the companies providing the music on their servers often move their servers off-shore and out of jurisdiction.

Designs

There are two types of design; registered designs and unregistered designs. Both these types of designs protect the appearance, shape, colour and other aesthetic qualities of a particular physical object.

In contrast to copyright, the physical object does not need to have an artistic quality in order to be encompassed by design protection. This type of protection is likely to be the most effective tool currently available against 3D reproductions of many types of consumer products – such a designer shoes or handbags, for example.

However, once again, there are obvious limitations in pursuing the real 'home copier' who makes the item for personal use and efforts would be better concentrated on more prolific copiers who reproduce items for sale.

Patents

A patent protects technical innovation. In other words, the appearance of a product is irrelevant as far as a patent is concerned; if a product contains the innovation, it infringes the patent. Given the rapid rise in complexity of products produced by 3D printers, the patent may become a very useful tool. For example, in the produced working gun, there may be several patents that were infringed to ultimately produce that functioning product. These infringements would be easily detected from the blueprints making policing the relevant patents quite straightforward.

Trade marks

Registered trade marks can be obtained in Europe for any distinctive sign, such as brand names, logos or shapes. Trade mark protection is obtained in relation to specified goods or services.

In broad terms, trade mark infringement occurs where a third party uses the registered sign (or a sign so similar to the registered sign so as to cause customer confusion) in the course of trade in relation to the same or similar goods or services.

In the example of the designer shoes, the brand owner may well have protected not only the name of shoes, but also aspects of their appearance (which may exist alongside design right) which would be infringed by the copy produced even if the brand name did not actually appear on the copy.

Once again, however, the home copier may escape liability if they are not reproducing goods 'in the course of trade' and the brand owner should instead target more prolific copiers.

Practical advice

Although intellectual property in its current form offers little protection against the home copier, there are many important steps that can be taken against the more prolific copier who tries to sell the produced items for commercial gain.

In reality, prolific copiers are a bigger threat to manufacturers than the home copier as economies of scale mean that prolific copiers sometimes sell copied goods cheaper than a home copier may be able to produce the goods. In this case, it is vital for manufacturers to know what intellectual property is available to leverage against the prolific copier and to make use of all available options.

Also, manufacturers may wish to consider embracing this new technology to engender customer loyalty and to generate new revenue streams. For example, phone manufacturers could sell a blueprint for a customisable phone cover which consumers can produce on a home printer.

As we await further developments in 3D printing and discernible trends in the law develop, infringements will clearly be dealt with on a case by case basis. If you have any concerns about particular infringements of your intellectual property or would like to devise an appropriate defence strategy, please do not hesitate to contact your usual D Young & Co advisor. We will also be speaking about IP protection (from concept to production) at the 'Engineering Design Show' in Coventry, UK this October (see our events page for further information).

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.

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