3D printing: the notion of use in trade mark law under pressure

The new frontier of manufacturing, 3D printing, makes it easy to fabricate objects of any kind with the sole help of a 3D printer and CAD files. This may prove attractive for consumers who may be willing to engage in the home-production of objects. At first glance, this may not seem problematic for trade mark law: in its innocuous version, 3D printing simply enables consumers to customise their goods and to escape the standardisation of products provoked by the current prevailing business model.

However, home-3D printing also has a dark side as it may enable consumers to easily replicate products incorporating trade marks. It is reasonable to assume that consumers will not engage only in the private use of 3D-printed objects. Admittedly, they are likely to display some of them in public. This implies that products bearing trade marks will start circulating directly outside the points of sale and this may induce consumers to mistakenly assume that goods, which in fact are 3D-printed, come from the trade mark proprietor. How trade mark law is going to deal with this phenomenon is far from clear.

To evaluate this, this study reviews the present notion of infringing use under UK and EU laws, taking into account case law and academic literature, with a view to assessing whether the concept of use can be stretched to cover home-3D printing. The approach to this research is disillusioned: if it is true that 3D printing should be welcome for its role in fostering consumer empowerment, it is crucial to remember that it may also deprive consumers of some of the advantages they derive from the trade mark system. This latter aspect is often overshadowed by the positive effects of 3D printing.

This study finds that infringement in relation to home-3D printed objects embedding trade marks can be found only in limited cases. By shifting attention to the digital environment, this study concludes that infringement is more likely to be found when private individuals engage in the sale or share of CAD files embedding trade marks. Furthermore, it argues that, under certain circumstances, online platforms displaying CAD files should be held liable for infringement.

This working paper is a part of the "Outstanding LLM Dissertations 2021".