!

Title:!!

Flashpoints+in+3D+Printing+and+Trade+Mark+Law+

Author:!!Amanda+Scardamaglia+!
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Flashpoints in 3D Printing and Trade Mark Law

AMANDA SCARDAMAGLIA*
Abstract
This article considers the previously unexplored trade mark related issues arising
from 3D printing. It draws on the existing futures discourse to forecast the possible
futures for 3D print and trade mark law, with an especial focus on the various
flashpoints at which 3D printing and trade mark law may collide, in light of the
projected and expected incumbent response to this new and emerging technology.

Introduction
You never change things by fighting the existing reality. To change
something, build a new model that makes the existing model obsolete.
Buckminster Fuller (1895 1983, undated).

Much of the extant literature on three dimensional (3D) printing has been
both enthusiastic and unadulterated, generating predictions of A Third
Industrial Revolution.1 While this has sparked several optimistic

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
*"" Senior" Lecturer," Swinburne" Law" School." " The" author" wishes" to" thank" the"
anonymous"referees"for"their"thoughtful"and"considered"feedback."Thanks"to"Dan"
Hunter,"Dean"Lusher"and"Angela"Daly"for"their"comments"on"an"earlier"draft"and"
to"the"participants"at"the"Oxford/UNSW"IP"Roundtable"WIP"event.""This"research"
was" supported" by" a" Swinburne" Centre" for" Transformative" Innovation" Research"
Fellowship."
1

"" The"Economist,"A"Third"Industrial"Revolution"(21"April"2012)"
<http://www.economist.com/node/21552901>"(29"May"2015)."Further"see:"N"
Hopkinson"and"R"J"M"Hague"(eds),"Rapid"Manufacturing:"An"Industrial"Revolution"for"
the"Digital"Age"(John"Wiley"&"Sons,"2005);"New"Scientist,"3D"Printing:"Second"
Industrial"Revolution"is"Under"Way"on"New"Scientist"(Special"Report)"(1"August"
2011)"<http://www.newscientist.com/special/3D^printing>"(29"May"2015);"
Christopher"Barnatt,"3D"Printing:"The"Next"Industrial"Revolution"(7"November"2014)"
ExplainingTheFuture.com"<http://www.explainingthefuture.com/3dp_book.html>"
(29"May"2015)."Another"theme"that"dominates"the"literature"is"that"of"unknown"
potential,"with"several"possible"futures"for"3D"printing"forecast."On"this"see:"
Thomas"Birtchnell"and"John"Urry,"3D,"SF"and"the"Future"(2013)"50"Futures"25,"

Flashpoints in 3D Printing and Trade Mark Law

conversations about the subversion of traditional manufacturing,2 and the

dismantling of the distinction between the amateur and the entrepreneur,3 it
has also sparked some more measured discussions about the legal and
regulatory aspects of 3D printing.
Intellectual property law has been central to this commentary. On this, the
usual intellectual property suspects have featured prominently, with much of
what has been written about the intersection between 3D printing and
intellectual property dominated by patents, copyright law and designs.4 This
however has been at the expense of any detailed consideration of the
application of trade mark laws and laws protecting commercial reputation
more generally, which are just as relevant to the debate.5 This article fills the
existing gap by exploring the legal issues that may arise as a result of 3D
printing, with a specific focus on the application of trade mark law and its
ancillary protection in Australia. In doing so, it draws upon the existing

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
where"the"authors"draw"on"science"fiction"in"visioning"[sic]"the"potential"economic"
and"social"consequences"of"3D"printing."
2

3
4

"" See" for" example:" Tim" Mazzarol," 3D" Printing:" The" Game" Changer" for" Future"
Manufacturing" (10" July" 2012)" The" Conversation" <http://theconversation.com/3d^
printing^the^game^changer^for^future^manufacturing^8151>"(29"May"2015).""
"" Chris"Anderson,"Makers:"The"New"Industrial"Revolution"(Crown"Business,"2012)"18."

"" As"to"patents"see"for"example:"Daniel"Harris"Brean,"Patents"to"Combat"

Infringement"via"3D"Printing:"Its"No"Use"(2013)"23(3)"Fordham"Intellectual"
Property,"Media"&"Entertainment"Law"Journal"771."As"to"copyright"see"for"example:"B"
Rideout,"Printing"the"Impossible"Triangle:"The"Copyright"Implications"of"Three^
Dimensional"Printing"(2011)"5(1)"The"Journal"of"Business,"Entrepreneurship"&"the"Law"
161;"Michael"Weinberg,"Whats"the"Deal"with"Copyright"and"3D"Printing?"(Public"
Knowledge"Whitepaper,"2013);"Lucas"Osborn,"Of"PHDs,"Pirates,"and"the"Public:"
Three^Dimensional"Printing"Technology"and"the"Arts"(2014)"1"Texas"Arts"and"Media"
Law"Review"811."On"design"law"see:"Tyrone"Berger,"The"3D"Revolution"is"Upon"Us""
And"Designers"Need"Better"Protection"(27"November"2014)"The"Conversation"
<http://theconversation.com/the^3d^revolution^is^upon^us^and^designers^need^
better^protection^34051>"(29"May"2015)."For"a"more"general"enquiry"into"the"
intellectual"property"implications"of"3D"printing"see:"Dinusha"Mendis"and"Davide"
Secchi,"A"Legal"and"Empirical"Study"of"3D"Printing"Online"Platforms"and"an"Analysis"of"
User"Behaviour"(UK"Intellectual"Property"Office,"2015)."

"" While" there" are" several" works" considering" the" intellectual" property" implications"
flowing"from"3D"printing"at"large"as"noted"above"n"4,"the"attention"afforded"to"the"
trade"mark"related"aspects"of"the"debate"are"somewhat"fleeting."Moreover,"they"are"
distinctly" American" and" British" in" flavour." See:" Lucas" Osborn," Regulating" Three^
Dimensional" Printing:" The" Converging" Worlds" of" Bits" and" Atoms" (2014)" 51" San"
Diego" Law" Review" 553;" Simon" Bradshaw," Adrian" Bowyer" and" Patrick" Haufe," The"
Intellectual"Property"Implications"of"Low^Cost"3D"Printing"(2010)"7"SCRIPTed"5."""
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futures discourse6 but from a legal perspective, forecasting the possible

futures for 3D print and trade mark law.
It begins by contextualising the debate with a short history of 3D printing in
order to lead into the central focus of the article that is, the relationship
between 3D printing and trade mark law. Particular attention is then paid to
the various flashpoints at which 3D printing and trade mark law may collide
in light of the projected and expected incumbent response to the trade mark
related issues that 3D printing exposes. The normative legal questions that
will be raised in the process will also be canvassed.
At this point, it must be said that this article does not set out to present an
exhaustive account of all of the trade mark related issues arising from the use
of 3D print technology. Rather, it modestly attempts to draw attention to
some of the most obvious futures for 3D print and trade mark law at a general
level not all of which are new as 3D print technology will likely give rise
to modern manifestations of familiar trade mark controversies.7
With this in mind, ultimately, it is argued that a typically reactive and strictly
legal response is likely to be expensive and ineffective for trade mark owners
in preventing the unauthorised reproduction of their trade marked goods. It
may also simply delay the inevitable. And if 3D printing does become our
reality, a reality where consumers become makers, then trade mark owners
will eventually have little choice but to embrace the new model of doing
things. In the meantime however, we are likely to see incumbents try and use
the intellectual property system, and more particularly for the purposes of
this article, trade mark law, as a control mechanism to guard against the rise
of 3D printing where that may encroach on their ability to control their brand
and their market.

3D Printing Primer

At its most basic level, 3D printing allows users to turn a blueprint into a
physical object.8 Also known as additive manufacturing or rapid
prototyping, 3D printing differs from traditional subtractive manufacturing
processes, which usually requires taking a block of material, say plastic, and
cutting or taking away from that block until a 3D object is formed. Instead, 3D

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6
7

"" See"especially"Birtchnell"and"Urry"above"n"1.""
"" As" a" consequence," this" article" does" not" engage" in" a" detailed" assessment" of" the"
jurisdictional"issues"that"3D"printing"presents"or"the"issues"around"secondary"trade"
mark"liability.""
"" Michael" Weinberg," It" Will" be" Awesome" if" They" Dont" Screw" it" Up:" 3D" Printing,"
Intellectual" Property," and" the" Fight" Over" the" Next" Great" Disruptive" Technology" (Public"
Knowledge"Whitepaper,"2012)"2."

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Flashpoints in 3D Printing and Trade Mark Law

printing gradually builds up a 3D object, layer by layer, adding filament

material to do so.
In terms of the 3D printing process, the first step begins with the design of a
blueprint, usually created with a computer aided design (CAD) programme
such as AutoCAD or Google Sketchup. Alternatively, a 3D scanner could be
used to create a CAD file by scanning an existing object. The CAD file is
versatile and can be shared, copied and modified in the same way as other
computer files. Once generated, the file can be used as the platform from
which to direct the 3D printer as to how to create the object that is the subject
of the file, layer by layer using an extruder (fused-filament), chemical agent
(binder) or a laser (sintering/melting).9
While many, especially media commentators, are attracted (or distracted) into
drawing parallels between new and old technologies, when it comes to
printing of 3D objects, the relationship between traditional two dimensional
(2D) printers or photocopies and 3D printers is largely superficial.10 Indeed it
is easier to describe the disanalogies than the analogies. The first and most
obvious point of difference relates to the different printing processes. 2D
printers print in two directions, being left to right, whereas 3D printers also
move up and down so as to stack layer upon layer until a 3D object is formed.
In terms of output, 2D printers use ink while 3D printers are capable of
expelling all manner of materials or filament, including plastic, metal, ceramic
and cement. 3D printers are also capable of extruding what some might
consider exotic materials or at least exotic when compared with traditional or
primary manufacturing processes. For instance, the popular press has become
fixated on the potential to print edible 3D objects especially chocolate,11 while
bio-fabrication and the possibility of using human cells to print living tissues
has also naturally captured the imagination of media outlets worldwide.12
Given this, the range of objects capable of being 3D printed is seemingly
limitless. And this is where the remarkable potential of this technology lies
in the capacity to print both simple and extraordinarily complex objects, some

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9

"" Birtchnell"and"Urry,"above"n"1,"28."

10

"" Osborn,"Of"PHDs,"Pirates,"and"the"Public,"above"n"4,"813."

11

"" See"for"example:"Oliver"Wainwright,"3D^Print"Your"Face"in"Chocolate"for"that"
Special"Valentines"Day"Gift"The"Guardian"(online),"26"January"2013"
<http://www.theguardian.com/artanddesign/architecture^design^
blog/2013/jan/25/3d^print^chocolate^face^valentines^day>"(29"May"2015);"Pagen"
Kennedy,"Who"Made"that"Hershey"Bar,"The"New"York"Times"Magazine"(online),"11"
January"2013"http://www.nytimes.com/2013/01/13/magazine/who^made^that^
hershey^bar.html?_r=0"(29"May"2015)."

12

" The"Economist,"Biofabrication:"Fit"to"Print"(6"April"2013)"
<http://www.economist.com/news/science^and^technology/21575745^new^ways^
make^living^tissue^artificially^fit^print>"(29"May"2015)."

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of which traditional manufacturing techniques are not well suited, or even

capable, particularly for bespoke products.
This wide-ranging utility is evident in the recent history of commercial 3D
printing.13 The potential of 3D printing is not limited to its commercial
application though, as demonstrated by the RepRap movement, which at its
core sought to move 3D printing outside the realms of the factory and into the
hands of the individual through the creation of a 3D printer that is selfreplicating and capable of printing all of its own parts.14 The maker
movement has gained significant traction over the last decade,15 with do-ityourself (DIY) printing becoming more commonplace, especially as the

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13

"" To"date,"3D"printing"has"been"used"to"produce"fully"functional"prosthetic"limbs:"
Ashlee"Vance,"3^D"Printing"Spurs"a"Manufacturing"Revolution,"The"New"York"
Times"(online),"13"September"2010"
<http://www.nytimes.com/2010/09/14/technology/14print.html?_r=0>"(29"May"
2015)."It"has"also"been"used"by"those"in"the"fashion"industry:"Rachel"Hennessey,"
3DVPrinting"Hits"the"Fashion"World"(7"August"2013)"Forbes"
<http://www.forbes.com/sites/rachelhennessey/2013/08/07/3^d^printed^clothes^
could^be^the^next^big^thing^to^hit^fashion/>"(29"May"2015);"Whitney"Hipolite,"3D"
Print"Fashion""Russian"Runway"Show"Features"some"of"the"Worlds"Top"3D"Printed"
Fashion"(27"August"2014)"3DPrint.com"<http://3dprint.com/13120/3d^print^fashion^
show/>"(29"May"2015)."Controversially,"the"technology"has"also"been"used"to"make"
3D^printed"guns:"Alexis"Kleinman,"The"First"3DVPrinted"Gun"has"been"Fired"(6"May"
2013)"Huffington"Post"http://www.huffingtonpost.com/2013/05/06/3d^printed^gun^
fired_n_3222669.html>"(29"May"2015);"Powerful"and"Here"to"Stay:"US"Firm"Slams"
First"3D^printed"Metal"Gun,"The"Sydney"Morning"Herald"(online),"9"December"2013"
<http://www.smh.com.au/digital^life/digital^life^news/powerful^and^here^to^stay^
us^firm^claims^first^3dprinted^metal^gun^20131209^2xava.html>"(29"May"2015);"
Andy"Greenberg,"Have"3VD"Printed"Guns"Evolved"into"Serious"Weapons"in"Just"One"
Year"(15"May"2014)"Wired""<http://www.wired.com/2014/05/3d^printed^guns/>"(29"
May"2015)."3D"printing"technology"is"also"being"used"to"convert"digital"or"liquid"
data"about"an"individuals"body"into"tangible"3D"forms."On"this"point"see"for"
example:"Deborah"Lupton,"Fabricated"Data"Bodies:"Reflections"on"3D"Printed"
Digital"Body"Objects"in"Medical"and"Health"Domains"(2015)"13"Social"Theory"and"
Health"99."

14

" See" R" Jones" et" al," RepRap" " The" Replicating" Rapid" Prototyper" (2011)" 29" Robotica"
177."

15

"" For"more"on"the"maker"movement"see"Mark"Hatch,"The"Maker"Movement"Manifesto:"
Rules" for" Innovation" in" the" New" World" of" Crafters," Hackers," and" Tinkerers" (McGraw^
Hill,"2013);"Cory"Doctorow,"Makers"(Tom"Doherty"Associates,"2010)."

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Flashpoints in 3D Printing and Trade Mark Law

equipment becomes more affordable and the print quality increases,

coinciding with the expiry of several early key 3D print patents.16
Clearly however there is still a way to go, as most at home printers are not
overly sophisticated and there are still issues around quality of output. Even
so, it is thought that over time these chinks will be ironed out and the
continued evolution of 3D printing will push us closer towards a world in
which people do not buy consumer goods any more but instead download
them from the web and print them themselves.17 The proliferation of CAD
files on file sharing sites such as Thingiverse make this prospect all the more
real,18 as does the emergence of 3D print shops, which offer 3D printing
services to the everyday person.19

Protecting Trade Marks, Trade Dress and Commercial

Reputation

While traditionally trade marks comprised of distinctive devices or graphical

signs, and later brand names and words,20 in recent times, it is understood
that almost anything at all that is capable of carrying meaning can function

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16

"" See" for" example" United" States" Patent" No" 4,575,330" (filed" 8" August" 1984);" United"
States" Patent" No" 4,863,538" (filed" 17" October" 1986);" United" States" Patent" No"
5,121,329" (filed" 30" October" 1989)" and" United" States" Patent" No" 5,204,055" (filed" 8"
December"1989).""

17

"" See"Bradshaw,"Bowyer"and"Haufe,"above"n"5,"11."

18

"" Thingiverse"is"an"online"design"file"repository,"which"presents"itself"as"a"
community"for"discovering,"making,"and"sharing"3D"printable"things."See:"
<http://www.thingiverse.com/>"(29"May"2015)."For"more"on"the"history"of"
Thingiverse"see"Jarkko"Moilanen"et"al,"Cultures"of"Sharing"in"3D"Printing:"What"
can"we"Learn"from"the"Licence"Choices"of"Thingiverse"Users"(2015)"6"Journal"of"Peer"
Production"<http://peerproduction.net/issues/issue^6^disruption^and^the^law/peer^
reviewed^articles/cultures^of^sharing^in^thingiverse^what^can^we^learn^from^the^
licence^choices^of^thingiverse^users/>"(29"May"2015)."Other"design"file"repositories"
include"Shapeways"<http://www.shapeways.com>"(29"May"2015),"Cuboyo"
<http:www.cuboyo.com>"(29"May"2015),"MyMiniFactory"
http://www.myminifactory.com"(29"May"2015),"Repables"
<htpp:www.repables.com/>"(29"May"2015),"Fabster"<htppwww.fabster.com/>"(29"
May"2015)"and"Yeggi"<http://www.yeggi.com>"(29"May"2015)."

19

"" In"Australia"see:"3D"Print"Express"<http://www.3dpe.com.au/>"(29"May"2015).""

20

"" For"more"on"the"evolution"of"trade"marks"see"Amanda"Scardamaglia,"The"Colonial"
Trade"Mark"Regime:"Opening"Up"the"Australian"Archives"on"Colonial"Trade"Mark"
Registrations"(2013)"23"Australian"Intellectual"Property"Journal"222,"242246."

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as a trade mark.21 As such, the types of signs or subject matter capable of

protection have been broadened over time to include colours, scents, sounds
and even the dcor and environment in which goods and services are sold.22
The definition of a trade mark has also been extended to encompass shapes.
In most jurisdictions, or at least those that are signatories to the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS),23 shapes are
subject matter capable of registration as a trade mark. This is because TRIPS
sets out a broad definition of what constitutes a trade mark so as to include
any sign capable of distinguishing goods or services.24 So, in addition to all of
the more conventional signs that are used as trade marks such as logos and
brand names, 2D and 3D shapes are also registrable. When this fact is

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21

"" Qualitex"Co"v"Jacobson"Products"Co,"514"US"159,"162"(1995)."

22""

See"for"example"FuddruckerZs"Inc"v"DocZs"B.R."Others"Inc,"826"F"2d"837"(9th"Cir,"1987)"
where"the"Court"found"that"a"restaurants"dcor,"menu,"layout"and"style"of"service"
were"protectable"trade"dress.""See"also"Two"Pesos"v"Taco"Cabana,"505"US"763"(1992)."
More"recently,"the"Court"of"Justice"of"the"European"Union"(ECJ)"has"confirmed"that"
Apple"Inc"is"able"to"register"the"layout"of"its"store"as"a"trade"mark."See"Apple"Inc"v"
Deutsches" PatentV" und" Markenamt" (German" Patent" and" Trade" Mark" Office)"(Court" of"
Justice" of" the" European" Union," C^421/13," 10" July" 2014)." The" same" mark" was"
approved" by" the" United" States" Patent" and" Trademark" Office" (USPTO)" on" 22"
January"2013."In"Australia,"an"application"for"the"same"mark"was"lodged"by"Apple"
Inc" but" was" not" registered." See" Australian" Trade" Mark" Application" Number"
1401839"and"1041840."

23

"" The"Agreement"on"TradeVRelated"Aspects" of"Intellectual"Property"Rights"1994"(TRIPS)"

sets"out"the"minimum"standards"of"protection"required"for"each"of"the"key"areas"of"
intellectual" property" law," and" which" must" be" adhered" to" by" each" Member" State.""
Critically," TRIPS" is" a" minimum" standards" agreement," such" that" Members" are"
permitted" to" provide" more" extensive" intellectual" property" protection," but" face"
potential"sanction"if"they"fall"below"these"threshold"requirements.""With"respect"to"
trade"marks,"the"key"TRIPS"provisions"are"enshrined"in"pt"2."

24

"" Article" 15.1" provides" that" all" signs" that" are" distinctive," visually" perceptible" (or"
capable"of"graphic"presentation)"and"not"inconsistent"with"the"Paris"Convention"for"
the" Protection" of" Industrial" Property," signed" 20" March" 1883" (entered" into" force" 20"
March"1883)"must"be"eligible"for"registration."Such"signs"include"particular"words"
including"personal"names,"letters,"numerals,"figurative"elements"and"combinations"
of"colours"as"well"as"any"combination"of"such"signs."While"the"non^exhaustive"list"
of"subject"matter"set"out"in"art"15.1"does"not"explicitly"refer"to"shapes,"shape"marks"
nevertheless"are"accepted"to"fall"within"this"definition."

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Flashpoints in 3D Printing and Trade Mark Law

considered in the context of 3D printing, it is clear that trade mark law is ripe
for disruption by 3D printing.25 It is also ripe with opportunities.
In Australia, shapes including 3D shapes are registrable pursuant to the
expansive definition of a sign as contained in the prevailing Trade Marks Act
1995 (Cth), which includes any letter, word, name, signature, numeral,
device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound
or scent.26 Thus, as well as making explicit provision for the registration of
colours, sounds and scents for the first time in Australia, the Trade Marks Act
1995 (Cth) which replaced the 1955 Act, also expanded registrable subject
matter to expressly include aspects of packaging and shapes. The only
qualifier for registration is the threshold requirement that the sign must
function as an indicator of source or badge of origin such that it is used to
distinguish one persons goods and services from others.27
There were several motivations for the legislative change in Australia. Of
primary significance was the need to ensure Australian trade mark legislation
was consistent with TRIPS. Lawmakers were also likely driven by the fact that
the absence of any specific statutory protection for 3D marks in the 1955 Act
put Australia at odds with other jurisdictions such as the United States28 but
particularly the United Kingdom, which had acted to enshrine TRIPS into its
trade mark law in 1994.29

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25

"" Devan"R"Desai"and"Gerard"N"Magliocca,"Patents,"Meet"Napster:"3D"Printing"and"
the"Digitization"of"Things,"(2013)"102"The"Georgetown"Law"Journal"1691,"1709."

26

"" Trade"Marks"Act"1995"(Cth)"s"6."""

27

"" Ibid"s"17."

28

"" In"the"United"States,"the"Lanham"Act"15"USC""1052"(1946)"explicitly"provides"that"a"
sign"shall"not"be"refused"registration"purely"on"account"of"its"nature."Accordingly,"
when" it" comes" to" assessing" the" subject" matter" of" trade" mark" protection" in" the"
United" States," it" is" the" source" distinguishing" ability" of" a" mark," not" its" ontological"
status"that"matters.""

29

"" In" the" United" Kingdom," and" consistent" with" art" 2" of" the" European" Trade" Mark"
Directive" (the" Directive)," a" trade" mark" is" defined" under" s" 1(1)" of" the" Trade" Marks"
Act" 1994" (UK)" c" 26" as" consisting" of" any" sign" capable" of" being" represented"
graphically" particularly" words," including" personal" names," designs," letters,"
numerals," the" shape" of" goods" or" of" their" packaging," provided" such" signs" are"
capable" of" distinguishing" the" goods" of" one" undertaking" from" those" of" other"
undertakings." Pursuant" to" this" definition" and" the" principles" set" out" in" Koninklijke"
Philips" Electronics" NV" v" Remington" Consumer" Products" Ltd," Case" C^299/99" [2002]" 2"
Common"Market"Law"Reports"52,"a"sign"(including"shapes)"cannot"be"precluded"from"
registration" because" it" is" prima" facie" incapable" of" acting" as" a" badge" of" origin."
Instead,"any"determination"as"to"registration"is"contingent"upon"the"assessment"of"

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The expansion of trade mark law in Australia in this regard sparked a flurry
of dialog, centred mostly on the lingering ambiguities surrounding the
registration of shapes as trade marks.30 Central to this dialog is the question of
functionality and the registration of monopolised or functional shapes which
may have anticompetitive effects. Several jurisdictions have addressed this
concern and made provision to specifically exclude from registration what are
deemed to be inappropriate applications.
The European Trade Mark Directive (the Directive), and consequently British
trade mark law for example, imposes registration restrictions for signs
consisting of shapes that result from the nature of the goods themselves, are
necessary to obtain a technical result or give substantial value to the goods.31
This prohibition is justified on the basis of the public interest, in ensuring that
natural, functional or ornamental shapes may be freely used by all.32 There is
an equivalent prohibition under Singaporean trade mark law.33

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
distinctiveness,"whether"that"be"ab"initio"or"through"the"use"which"is"made"of"the"
sign.""
30

"" In" Australia" there" is" a" long" list" of" academic" papers" dissecting" the" registration" of"
shapes"as"trade"marks"in"Australia."See"for"example:"Julia"Baird,"The"Registrability"
of" Functional" Shape" Marks" (2002)" 13" Australian" Intellectual" Property" Journal" 218;"
Patricia"Loughlan,"The"Concept"of"Sign"in"Australian"Trade"Mark"Law"(2005)"16"
Australian" Intellectual" Property" Journal"95;" Jani" McCutcheon," Monopolised" Product"
Shapes"and"Factual"Distinctiveness"under"s"41(6)"of"the"Trade"Marks"Act"1995"(Cth)"
(2004)" 15" Australian" Intellectual" Property" Journal" 18;" Mark" Davison," Shape" Trade"
Marks:" The" Role" and" Relevance" of" Functionality" and" Aesthetics" in" Determining"
their" Registrability" (2004)" 15" Australian" Intellectual" Property" Journal" 106." Also" see"
Megan" Richardson," Australian" Intellectual" Property" Law:" The" Form/Function"
Dilemma""A"Case"Study"at"the"Boundaries"of"Trade"Mark"and"Design"Law"(2000)"
European" Intellectual" Property" Review" 314;" Amanda" Scardamaglia," Protecting"
Product"Shapes"and"Features:"Beyond"Design"and"Trade"Marks"Australia"(2012)"7"
Journal"of"Intellectual"Property"Law"and"Practice"159.""

31

"" European" Trade" Mark" Directive," arts" 3(1)(e)(i)(iii)." Accordingly," Swiss" chocolate"
giant" Nestl" was" unsuccessful" in" registering" the" 3D" shape" of" its" chocolate" wafer"
product," the" KIT" KAT," because" the" mark" was" found" to" have" consisted" of" a"
functional" shape" (and" was" also" devoid" of" distinctiveness)." See" United" Kingdom"
Trade" Mark" Application" Number" 2552692," as" opposed" by" Cadbury" UK" Ltd" (20"
June"2013)."

32

"" A"Folliard^Mongurial,"Distinctive"Character"Acquired"Through"Use:"The"Law"and"
The" Case" Law" in" J" Phillips" and" I" Simon" (eds)" Trade" Mark" Use" (Oxford" University"
Press,"2005)"[409]."

33

"" Trade"Marks"Act"(Singapore,"cap"332,"2005"rev"ed)"s"7(3)."

EAP 9

Flashpoints in 3D Printing and Trade Mark Law

In the United States, the restriction on the registration of 3D shapes is found

in the functionality doctrine, which provides that the shape subject of
protection must not be essential to the use or purpose of the product or
service and not affect the cost or quality of the product or service.34 More
specifically [t]he functionality doctrine prevents trade mark law, which seeks
to promote competition by protecting a firms reputation, from instead
inhibiting legitimate competition by allowing a producer to control a useful
product feature.35 Critically, the functionality doctrine operates to preclude
protection even when the evidence establishes that consumers have come to
associate a functional product feature with a single source.36
The position in Australia by contrast, is far less restrictive. This is due to the
fact there is no functionality doctrine under Australian trade mark law
preventing the registration of functional shapes.37 Nor is there any explicit
legislative provision or ground of refusal relating to functional shape trade
marks, although such a limitation was included in the Trade Marks Act 1994
(Cth), an Act which never came into operation.38 Thus, the registration of
shape marks in Australia is most likely to hinge upon section 41 of the Act
and the marks capacity to distinguish, whether that is inherently or factually
on account of prior or factual use.39

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
34

"" Qualitex"Co"v"Jacobson"Prods"Co,"514"US"159,"163164"(1995)."This"is"confirmed"at""
1202.02(a)"of"the"Trademark"Manual"of"Examining"Procedure"(April"2014"ed)"(TMEP).""
The" statutory" basis" to" restrict" registration" on" the" grounds" of" functionality" can" be"
found"in""2"Lanham"Act"15"USC""1052(e)(5);""2"Lanham"Act"15"USC""1052(f);""23"
Lanham"Act"15"USC""1091(c);""14"Lanham"Act"15"USC""1064(3)"and"33"Lanham"Act"
15"USC.""1115(b)(8)."

35

"" Qualitex"Co"v"Jacobson"Prods"Co,"514"US"159,"164165"(1995)."

36

"" See"TMEP""1202.02(a)(ii)."

37

"" This"may"explain"why"the"3D"shape"for"the"chocolate"wafer"product"the"KIT"KAT"
as" discussed" in" above" n" 31," was" not" registered" in" the" United" Kingdom," but" is" a"
registered" trade" mark" in" Australia." " See" Australian" Trade" Mark" Application"
Number"849093.""

38

"" See" for" example" s" 39" of" the" Trade" Marks" Act" 1994" (Cth)," now" repealed." The" Trade"
Marks" Act" 1994" (Cth)" was" hastily" enacted" by" Parliament" to" meet" a" deadline"
imposed"pursuant"to"Australias"obligations"under"TRIPS,"but"it"never"commenced"
and"was"eventually"replaced"by"the"Trade"Marks"Act"1995"(Cth)."

39

"" See"for"example:"Chocolaterie"Guylian"N.V."v"Registrar"of"Trade"Marks"(2009)"180"FCR"
60," where" an" application" for" the" registration" of" a" seahorse" shaped" chocolate" was"
rejected"because"the"shape"was"not"sufficiently"distinctive"to"qualify"for"registration"
under" what" was" then" s" 41(1)" of" the" Act" and" would" not" have" had" the" capacity" to"
distinguish"under"what"was"then"s"41(5)"of"the"Act.""

EAP 10

Journal of Law, Information and Science

Vol 23(2) 2014-2015

It should be said that the jurisprudence on this point does indicate a

reluctance to permit the registration of shapes in Australia where doing so
would mean that the proprietor of the mark will be in a better position than a
patentee or the proprietor of a registered design, each of whom has a
protection limited to the span of a relatively short time.40 Even so, the judicial
statements made on the issue are purely obiter,41 and as the issue of
functionality is subsumed into discussions of distinctiveness under Australian
trade mark legislation, it is still possible that functional shapes could be
registrable if they come to acquire secondary meaning and in fact become
distinctive of one traders goods.42
If one can overcome these hurdles for protection (however constrained or
otherwise they may be), what does trade mark registration give the registered
owner, be it for traditional signs or shapes? Trade mark registration
essentially entitles the registered owner to the exclusive right to use the mark,
authorise others to use the mark and obtain relief if anybody encroaches on
these rights.43 Critically, the trade mark owner is not granted an unlimited
monopoly to use that mark, or shape as the case may be, to the exclusion of all
others. Instead, they are only granted the right to use that sign as a trade mark
that is in the course of trade as a badge of origin and stop others from doing
the same but only with respect to a sign that is likely to cause confusion.44

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
40

"" Koninklijke" Philips" Electronics" NV" v" Remington" Products" Australia" Pty" Ltd" (2000)" 100"
FCR"90,"93"[1]"(Burchett"J)."

41

"" See" also" obiter" statements" in" Kenman" Kandy" Australia" Pty" Ltd" v" Registrar" of" Trade"
Marks" (2002)" 122" FCR" 494" at" [137]" where" Burchett" J" observed" that" [t]he" concerns"
expressed" in" both" Philips" v" Remington" (Aust)," FC" and" Philips" v" Remington" (Eng)"
about" the" prospect" of" trade" marks" creating" monopolies" related" only" to" the"
registration" of" trade" marks" that" would" restrict" access" to" functional" features" or"
innovations,"and"for"this"reason"were"well"founded."

42

"" Pursuant" to" s" 41" of" the" Trade" Marks" Act" 1995" (Cth)." This" is" the" preferred" position"
put" forward" in" Jani" McCutcheon," Monopolised" Product" Shapes" and" Factual"
Distinctiveness"under"s"41(6)"of"the"Trade"Marks"Act"1995"(Cth)"(2004)"15"Australian"
Intellectual" Property" Journal" 18," where" at" 33" the" author" argues" that" it" should" be"
possible"to"register"under"s"41(6)"the"shape"of"a"monopolised"product""provided"
distinctiveness"in"fact"is"established"and"[i]f"Parliament"considers"that,"for"policy"
reasons,"such"signs"should"nevertheless"be"prohibited"from"being"registered,"then"it"
is"submitted"that"this"should"be"made"overt"""

43

"" Trade"Marks"Act"1995"(Cth)"s"20."

44

"" In"Australia"see"Trade"Marks"Act"1995"(Cth)"ss"120(1)(2)."In"Europe"see" First"Council"

Directive"89/104/EEC"of"21"December"1988"to"Approximate"the"Law"of"the"Member"States"Relating"
to" Trade" Marks," art" 5," which" has" subsequently" been" replaced" by" a" codified" version"

under"the"European"Parliament"and"Council"Directive"2008/95/EC"of"22"October"2008"
to" Approximate" the" Law" of" the" Member" States" Relating" to" Trade" Marks." This" has" been"

!
EAP 11

Flashpoints in 3D Printing and Trade Mark Law

Thus, the alleged infringing mark has to be used to speak to consumers as an

indicator of source.45 Consequently, personal, descriptive or aesthetic use of a
shape or the use of a shape for its functional capacity will not ordinarily
constitute infringement nor will the purely descriptive use of a registered
word mark. Use of a sign that is not confusing will also not infringe the rights
of the trade mark owner.46 Confusion might arise because the marks are
substantially identical,47 or because they are deceptively similar in which case
the alleged infringing sign so nearly resembles a registered mark such that it
is likely to deceive or cause confusion.48
In the event that a trade mark owner does seek to exercise their legislative
rights and bring a claim for trade mark infringement, they will not ordinarily
do so in isolation. Rather, claims of trade mark infringement are usually
argued in conjunction with the various other legal actions which supplement
the protection afforded by statutory trade mark regimes, for registered trade
marks but also unregistered trade marks in certain circumstances, including
shapes and trade dress. For example, laws which guard against false and
misleading conduct under the Australian Consumer Law (ACL) are commonly
used by traders to supplement the statutory protection available for
registered trade marks, including traders with unregistered trade marks, such
as product designs.49 Confusing uses of registered and common law marks
may also be captured by the ancillary protection afforded to trade marks and
3D shapes as found in the law of passing off, which has been successfully

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
implemented"by"s"10"of"the"Trade"Marks"Act"1994"(UK)"c"26."In"the"United"States"see"
"32"Lanham"Act"15"USC""1114.""
45

"" At"least"this"is"the"case"in"Australia"subject"to"s"17"of"the"Trade"Marks"Act"1995"(Cth)"
and"the"principles"set"out"in"Shell"Co"(Aust)"Ltd"v"Esso"Standard"Oil"(Aust)"Ltd"(1961)"
109"CLR"407."The"threshold"for"use"in"the"United"Kingdom"is"much"broader"such"
that" any" use," which" takes" unfair" advantage" of," or" is" detrimental" to" the" distinctive"
character" of" the" repute" of" the" trade" mark" will" constitute" use." See" Trade" Marks" Act"
1994" (UK)" c" 26," s" 10." The" threshold" for" use" in" the" United" States" is" somewhat"
narrower"and"more"aligned"to"the"Australian"position.""

46

"" See"CocaVCola"Company"v"PepsiCo"Inc"(No"2)"[2014]"FCA"1287"(3"December"2014).""

47

"" To" determine" whether" trade" marks" are" substantially" identical" involves" a" side" by"
side"comparison,"taking"into"account"the"visual"and"aural"similarities."See"Shell"Co"
(Aust)"Ltd"v"Esso"Standard"Oil"(Aust)"Ltd"(1961)"109"CLR"407,"414415.""

48

"" Trade"Marks"Act"1995"(Cth)"s"10.""""

49

"" See" the" ACL" as" set" out" in" sch" 2" of" the" Competition" and" Consumer" Act" (Cth)" 2010"
(which" has" replaced" the" Trade" Practices" Act" 1974" (Cth)" and" in" particular" s" 18" (and"
the" related" s" 29)" which" prohibits" misleading" or" deceptive" conduct." For" a" case"
involving"a"product"design"(leather"couch)"see"Parkdale"Custom"Built"Furniture"Pty"
Ltd"v"Puxu"Pty"Ltd"(1982)"149"CLR"191.""

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Journal of Law, Information and Science

Vol 23(2) 2014-2015

used to protect a traders goodwill or reputation which is tied up in the shape

or design of a product, where that indicia has acquired secondary meaning as
being distinctive of that traders goods and services.50

Intersections in 3D Printing and Trade Mark Law

4.1 Exploitation Opportunities and their Doctrinal Consequences

The surge in 3D printing and its take up by businesses around the world
means there is a great deal of scope for the exploitation of 3D shapes pursuant
to the law relating to trade marks as outlined in the preceding section. As a
consequence, there may be a greater uptake in 3D shape trade marks as
companies look to expand their intellectual property portfolios and
monopolise 3D printing technology for their businesses the first of several
potential future flashpoints involving 3D print and trade marks.51 This is
especially so because trade mark protection offers more flexibility than other
intellectual property regimes. So for instance, while design law provides a
limited monopoly period (usually for a maximum 10 years),52 trade mark
registrations can be renewed perpetually so long as the mark is still in use.
Trade mark law may also be an appealing alternative to copyright protection,
as statutory trade mark law gives the owner the certainty of registration,
which copyright cannot afford, at least in those jurisdictions where there is no

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
50

"" For"a"classic"case"of"passing"off"where"a"trader"was"able"to"show"its"product"shape"
(a" plastic" lemon" shaped" container)" had" acquired" secondary" meaning" without"
registration" and" was" successful" in" its" claim" for" passing" off" against" a" competitor"
who" had" adopted" similar" shaped" packaging," see" Reckitt" &" Colman" Products" Ltd" v"
Borden" Inc" [1990]" UKHL" 12" (1" January" 1990)." For" a" more" recent" successful" case"
involving"the"shape"of"a"coffee"plunger"see"Peter"Bodum"A/S"v"DKSH"Australia"Pty"
Ltd"(2011)"92"IPR"222."

51

"" Of"course,"this"exploitation"possibility"has"long"been"available"to"the"manufacturers"
of"3D"objects"utilising"traditional"mass"manufacturing"methods"(at"least"for"as"long"
as" 3D" shapes" have" been" registrable" as" trade" marks" in" Australia)." " The" present"
curiosity" and" thirst" for" 3D" print" technology" may" however" see" a" renewed," albeit"
short^lived"surge"in"3D"shape"mark"applications"as"some"of"the"enthusiastic"early"
users"seek"to"mark"out"their"territory"in"the"3D"print"sphere."""

52

"" In"Australia,"under"s"46"of"the"Designs"Act"2003"(Cth),"the"term"of"protection"is"five"
years" from" the" filing" date" of" the" design" application" in" which" the" design" was" first"
disclosed."If"the"registration"of"the"design"is"renewed"under"s"47,"then"the"term"of"
protection" is" 10" years" from" the" filing" date" of" the" design" application" in" which" the"
design" was" first" disclosed." Compare" this" to" the" position" in" the" United" Kingdom"
pursuant"to"s"8"of"the"Designs"Act"1949"(UK)"c"88"and"in"the"United"States"under"the"
Patents"Act"(Designs)"35"USC""173.""

EAP 13

Flashpoints in 3D Printing and Trade Mark Law

copyright registration system.53 The ability to perpetually renew trade mark

registrations also means that the period of protection may outstrip the
monopoly afforded by copyright, so long as the trade mark is still in use,54
and is still distinctive.55
Of course the opposite may turn out to be true. And instead of seeing a shift
towards shapes and trade dress registration, it may be that 3D printing results
in a shift away from the use of these types of signs. This is based on the
hypothesis that the unauthorised use of shape marks will dramatically
increase as a consequence of 3D printing (a matter that will be discussed later)
such that product configurations, without word marks or corresponding
logos should become less valuable.56
Time will tell whether this reality eventuates. Imagining, at least in the
interim, there is somewhat of a rush in the use and registration of shapes and
trade dress as a reflection of the present interest in 3D print, there are various
ways in which companies might make the most of the trade mark system
when it comes to 3D printing and 3D shapes. The recently announced
collaboration between Hersheys and 3D Systems provides an indication of
how things might play out in practice,57 with this announcement shortly

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
53

"" Pursuant" to" the" Berne" Convention" for" the" Protection" of" Literary" and" Artistic" Works,"
signed" 9" September" 1886," (entered" into" force" 5" December" 1887)" (Berne"
Convention)"copyright"registration"is"unnecessary"as"copyright"arises"as"a"matter"
of" law." Several" Berne" Convention" members" have" established" voluntary" national"
registration" systems" for" copyright" and" sometimes" also" for" related" rights."" In" these"
Member"States,"registration"facilitates"the"exercise"of"copyright"and"related"rights,"
by" providing" owners" with" a" simple" and" effective" means" to" clearly" establish"
authorship" and/or" ownership" of" rights." While" copyright" registration" systems" did"
exist" historically" in" the" Australian" colonies," the" United" Kingdom" and" the" United"
States,"they"are"no"longer"operational,"although"registration"is"still"required"in"the"
United"States"for"the"purposes"of"awarding"statutory"damages."

54

"" See"Trade"Marks"Act"1995"(Cth)"s"92"where"a"trade"mark"can"be"removed"from"the"
register"for"non^use."

55

"" See"Trade"Marks"Act"1995"(Cth)"s"87"where"a"trade"mark"can"be"removed"from"the"
register"where"the"mark"has"become"generic.""

56

"" Desai"and"Magliocca,"above"n"25,"1710."

57

"" See"Rachel"Park,"Big"Confectioners"want"in"on"3D"Printing"as"3D"Systems"and"Hershey"
Team"Up"(16"January"2014)"3D"Printing"Industry"
<http://3dprintingindustry.com/2014/01/16/big-confectioners-want-3d-printing3d-systems-hershey-team/">(29"May"2015)."

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Journal of Law, Information and Science

Vol 23(2) 2014-2015

following the companys success in registering the shape of its well-known

chocolate bar as a trade mark in the United States.58
Given chocolate and confectionary products are already popular subjects of
shape-based trade mark registrations around the world but especially in
Australia,59 there are some real opportunities for these businesses to capitalise
on their monopolies and carve out an exclusive space in the 3D printing
chocolate market. Of course, these opportunities extend beyond the realms of
the manufacturers of chocolate and confectionary as any company who has
registered a 3D shape as a trade mark would be able to enjoy the benefits of
their monopoly to the exclusion of others.
There are of however consequences that flow from this and if we do indeed
see a growing penchant for shape mark registrations, policy makers and
judges will, sooner or later, have to grapple with some prickly policy
questions. For a start, 3D printing and the registration of 3D shapes may open
up old wounds concerning the function of trade mark law, the rationale for
the registration of shapes and other non-conventional signs as trade marks,
and the expansion of registrable subject matter more generally. It may even
lead to a re-evaluation of the function of the trade mark beyond its economic
function as a badge of origin, which is central to the current rationalisation of
trade mark law.60 A shift to shape trade mark registrations away from other
modes of intellectual property will also undoubtedly place increased
emphasis on the functionality doctrine in the jurisdictions in which it
operates, as a gatekeeper to the sanctity of the trade mark system. In
Australia, it might shine a light on the long over-due need for Parliament to
explicitly exclude the registration of functional shapes, before an
opportunistic party tries to take advantage of that fact that there is no clear

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
58

"" Re" Hershey" Chocolate" and" Confectionary" Corporation," Serial" No." 77809223" (June" 28,"
2012)."

59

"" See:"Australian"Trade"Mark"Number"706789"for"the"interlocking"triangles"used"by"
Kraft"Foods"Schweiz"Holding"GmbH"for"TOBLERONE."Also"see"Australian"Trade"
Mark" Number" 706789." Further" see" Trade" Mark" Number" 706623," being" the" shape"
used"by"Cadbury"Enterprises"Pty"Limited"for"its"FREDDO"FROG."Finally,"note"the"
failed"attempt"by"Chocolaterie"Guylian"N.V."to"register"the"shape"of"a"seahorse"for"its"
chocolate"products,"as"referred"to"above"n"39."

60

"" William" M" Landes" and" Richard" A" Posner," Trademark" Law:" An" Economic"
Perspective" (1987)" 30" Journal" of" Law" and" Economics" 266;" William" M" Landes" and"
Richard" A" Posner," The" Economic" Structure" of" Intellectual" Property" (Harvard"
University"Press,"2003)."

EAP 15

Flashpoints in 3D Printing and Trade Mark Law

judicial or legislative statement on the appropriate test for excluding trade

marks from registration on the grounds of functionality.61
The other pressing concern that may arise from this circumstance relates to
the enforcement of the rights associated with shape marks and trade dress, in
an environment where 3D printing is the norm. This includes the inevitable
conflict that will arise between rights holders and their alleged infringers as
we move towards an economy of things, including shapes, where advances
like 3D printing promise to do for a variety of physical goods what the
Internet has done for information.62

4.2 Trade Mark Piracy

From an enforcement perspective, there are various flashpoints at which 3D
printing and trade mark law may collide if 3D printing causes a piracy
problem for trade marks in the same way the internet has facilitated the
current, apparent, copyright piracy scourge. The first flashpoint involves
reproducing 2D trade marks on 3D printed objects. That is, at the macro level,
trade mark law is implicated in the processes of 3D printing where an object,
which includes a trade mark, is copied using a 3D printer. This would only be
an issue in a commercial context, as trade mark infringement is generally
limited to uses of a trade mark in trade or commerce that are confusing. Thus,
printing a ceramic mug on a 3D printer which includes the Coco-Cola
dynamic ribbon device, which is a registered trade mark, would likely
constitute trade mark infringement, where those mugs were sold
commercially. Ancillary liability under the heads of law discussed in the
previous section would also likely follow, especially if the use of that device
was likely to cause confusion and lead consumers to think that the mug was
an authorised or licensed product of The Coca-Cola Company. The same
however cannot be said if the mug were printed for personal use. This is
because it would almost certainly be a use which is not captured by section
120 of the Trade Marks Act 1995 (Cth). Moreover, there is almost no likelihood
of confusion in this instance since [y]ou know you made the product, so there
is no chance that you are going to be confused about where it came from.63
Claims for infringement might similarly arise with respect to making or
printing 3D versions of 2D marks, akin to that seen in Coca-Cola Co v All-Fect
Distributors Ltd.64 This is especially in relation to the 3D reproduction of 2D

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61

"" Mark"Davison,"Shape"Trade"Marks:"The"Role"and"Relevance"of"Functionality"and"
Aesthetics" in" Determining" their" Registrability" (2004)" 15" Australian" Intellectual"
Property"Journal"106,"111."

62

"" Mark"Lemley,"IP"in"a"World"Without"Scarcity"(2015)"90"New"York"University"Law"
Review"460."

63

"" Weinberg,"It"Will"be"Awesome"if"They"Dont"Screw"it"Up,"above"n"8,"8."

64

"" See"CocaVCola"Co"v"AllVFect"Distributors"Ltd"(1999)"96"FCR"107.""
EAP 16

Journal of Law, Information and Science

Vol 23(2) 2014-2015

fictional characters, many of which are registered as 2D trade marks or at

least are exclusively associated with particular film and television franchises
and their production companies. They are also popular subjects of 3D printed
fan art. Typically, these grievances have been framed in terms of copyright
infringement, (often necessarily because of the operation of the DMCA)65
but claims for trade mark infringement, passing off and misleading conduct
may also arise into the future as these laws provide another mechanism for
proprietors to censor the unauthorised use of their content. This might be the
case especially in Australia given the absence of any DMCA equivalent.
Another flashpoint arises concerning the person designing 3D print files and
the platform that makes these files available for download, as well as the
commercial entities which seek to take advantage of 3D printing in their own
businesses. Imagine for example somebody designs a hubcap for a Mercedes
Benz car and makes that design file available for download on Thingiverse.
Like the ceramic mug, it may be downloaded by individuals for their own
personal use. It might also be downloaded by motor mechanics or smash
repairs services, looking for cheap, after market spare parts.
Now to be clear, producing and designing a hubcap that is simply compatible
with a Mercedes Benz car is not problematic from a trade mark law
perspective per se. Describing it that way on a digital file repository site like
Thingiverse is also not problematic. That is, unless the designer made false
representations or misleading statements about their affiliation or connection
with Mercedes Benz, in which case the ACL would apply as would the law of
passing off.66 Otherwise, most jurisdictions explicitly make allowance for this
kind of descriptive use where it is necessary to use a trade mark for the
purpose of indicating the intended purpose of a product, in particular as an
accessory or spare part.67 If however, the Mercedes Benz logo is featured on
the hubcap and therefore included in the file, the matter becomes more

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
65

"" See" for" example" the" furore" which" arose" with" respect" to" a" 3D" printed" Iron" Throne"
iPhone" Dock," derived" from" the" cult" television" series" Game" of" Thrones," in" which"
HBO"reportedly"issued"a"take^down"notice:"3deres.org,"3D"Printing"Startup"Received"
Takedown" Notice" from" HBO" for" IP" Infringement" (13" February" 2013)"
<http://www.3ders.org/articles/20130213^new^3d^printing^company^received^
takedown^notice^from^hbo^for^ip^infringement.html>"(29"May"2015)."

66

"" The platform hosting the misleading content on the other hand, may escape
liability. See Google" Inc" v" Australian" Competition" and" Consumer" Commission" (2013)
249 CLR 435. For a discussion of this case see Amanda Scardamaglia," Misleading"
and" Deceptive" Conduct" in" Australia:" Google" Inc" v" Australian" Competition" and"
Consumer" Commission" [2013]" HCA" 1" (2013)" 35(11)" European" Intellectual" Property"
Review"707."

67

"" In"Australia"see:"Trade"Marks"Act"1995"(Cth)"s"122(1)(c)."In"the"United"Kingdom"see"
for"example"Trade"Marks"Act"1994"(UK)"c"26,"s"11(2)(c)."In"the"United"States"see:""33"
Lanham"Act"15"USC""1115(b)(4).""

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Flashpoints in 3D Printing and Trade Mark Law

complicated. For the motor mechanic who prints the trade marked hubcap
and sells it to their clients, this will probably amount to trade mark
infringement as there has been use of the mark in commerce. Ancillary
liability may also arise. The platform facilitating this commercial use and the
designer responsible for uploading the file may also be implicated for
enabling this, although one would have to establish use of the mark by the
platform or designer involved.68
The use of registered trade marks in an online environment complicates
matters even further, since use for trade mark infringement must occur in
Australia. On this, Merkel J observed in Ward Group Pty Ltd v Brodie & Stone
plc that: 69
[t]he use of a trade mark on the internet, uploaded on a website
outside of Australia, without more, is not use by a website proprietor
of the mark in each jurisdiction is downloaded. However ... if there is
evidence that the use was specifically intended to be made in, or
directed or targeted at, a particular jurisdiction then there is likely to
be a use in that jurisdiction when the mark is downloaded. Of course,
once the website intends to make and makes a specific use of the
mark in relation to a particular person or persons in a jurisdiction
there will be little difficulty in concluding that the website proprietor
has used the mark in that jurisdiction.
Based on this statement, it is uncertain whether a file sharing site such as
Thingiverse (which is based in the United States) could be said to be using a
trade mark by hosting a design file containing a registered trade mark and
making it available to download, or whether the designer themselves may be
held responsible.70 If there is evidence that Australian consumers have

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
68

"" In" Australia," the" position" of" who" precisely" may" be" liable" for" trade" mark"
infringement" (primary" or" secondary)" is" described" as" murky." See" Robert" Burrell"
and" Michael" Handler," Australian" Trade" Mark" Law" (Oxford" University" Press," 2010)"
512."As"to"platform"liability,"there"is"no"test"case"in"Australia."Existing"international"
precedent" would" indicate," at" least" in" the" context" of" keyword" advertising," that"
hosting"platforms"are"unlikely"to"be"liable."See:"Google"France"SARL"v"Louis"Vuitton"
Malletier" SA" (C^236/08)" [2010]" ECR" I^02417." The" designer" of" a" 3D" print" file"
incorporating"a"trade"mark"may"however"be"liable"as"a"primary"infringer"but"also"
further"to"s"147"of"the"Trade"Marks"Act"1995"(Cth)"for"assisting"a"person"in"applying"
a"registered"trade"mark"to"goods"under"s"146."""

69

"" Ward" Group" Pty" Ltd" v" Brodie" &" Stone" plc" (2005)" 143" FCR" 479," 49091" [43]" (Ward"
Group)."

70

"" The"terms"of"use"of"many"of"these"file^sharing"sites"may"limit"their"liability"in"this"
respect,"pushing"the"onus"of"responsibility"back"on"the"user."Thingiverse"for"
example"would"be"precluded"from"any"liability"by"virtue"of"s"5"of"their"terms"and"
conditions"which"provide"that"users"agree"to"indemnify"the"company"from"any"

!
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Journal of Law, Information and Science

Vol 23(2) 2014-2015

downloaded the offending file, that may not be enough to satisfy the
requirement that there has been use of a trade mark targeting a market in
another country.71 Thus, pursuant to the Ward Group test, a trade mark owner
in Australia may have no recourse under the Trade Marks Act 1995 (Cth)
against the designer who uploads the file or the file sharing platform. Then
again, a lot of time has passed since the Ward Group case, and if the matter
were brought before a court today, they may adopt an entirely different
approach, one which better reflects the current state of trade and commerce
and does not ignore the universal and seamless character of the internet.72
Given the case law on this aspect of use is scant and further elaboration has
been left wanting, it may only be a matter of time before 3D printing further
exposes the requirement of trade mark use in an online context in Australia.
A third flashpoint arises for the person who prints the trade marked hubcap
at home and fits the item onto their S-Class Mercedes Benz. This is different
from the earlier example involving the ceramic mug bearing the Coca-Cola
trade mark, which if only being used privately, would unlikely result in
confusion. The public use of the hubcap on the S-Class Mercedes Benz is very
different, as there is a risk that the public may believe the hubcap emanated
from the trade mark owner. Even so, it may still not be considered to be use in
commerce, which is an issue which 3D printing may expose to greater
scrutiny. And while the term trade has been afforded a broad interpretation,
it would be a stretch to say this type of use could properly be referred to as in
the course of trade. In any event, this scenario is probably a moot point, in
light of the current state of technology, since it is unlikely that consumers will
have 3D printers sophisticated enough for laser sintering metal, let alone the
technical skills to print spare car parts at home.73
The legal issues presented by this hypothetical are more vexed if we take this
scenario one step further and instead of fitting the 3D printed hubcaps on a

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
claim"or"demand"made"by"a"third"party.""See:"Thingiverse,"Makerbot"Terms"of"Use"
(last"updated"14"February"2014)"
Thingverse.com<https://www.thingiverse.com/legal>"(29"May"2015)."
71

"" This"is"a"test,"which"some"commentators"have"suggested"remains"unclear."See:"Sam"
Ricketson," Trade" Mark" Liability" arising" out" of" Internet" Advertising" (2007)" 12"
Media" and" Arts" Law" Review" 1," 25;" Domenic" Carbone," Electronic" Commerce" and"
Protecting" Intellectual" Property" on" the" Internet" (2009)" 37" Australian" Business" Law"
Review"239,"248."See"more"generally"Warwick"Rothnie,"A"Bona"Fide"Offering"to"the"
World"at"Large:"(Not)"Using"Signs"on"the"Internet"(2006)"17" Australian"Intellectual"
Property"Journal"45.""

72

"" Ricketson,"above"n"71,"27."

73

"" This" is" especially" since" research" indicates" that" most" consumers" use" 3D" print"
technology" in" pursuit" of" their" personal" hobbies" and" for" pleasure." " See" generally"
Mendis"and"Secchi,"above"n"4."

EAP 19

Flashpoints in 3D Printing and Trade Mark Law

Mercedes Benz vehicle, they are used on a different brand vehicle, such as a
Toyota Corolla. Here, Mercedes Benz as the trade mark owner would not so
much be concerned with consumer confusion, but with the dilution of their
brand and thus may seek redress accordingly, under the doctrine of trade
mark dilution.
In a nutshell, dilution protection seeks to protect the prestige of a trade mark
and guard against someones ability to make a copy and sell it to someone
who knows that the good is a copy, because that copying may reduce the
artificial scarcity of the good and its ability to be a status symbol.74 Thus,
somebody who prints an object on a 3D printer bearing a trade mark, which is
used on a third party product, as imagined in the above example, will
obviously be objectionable from the perspective of the trade mark owner
pursuant to the principles of trade mark dilution.
While trade mark owners in the United Kingdom and United States will have
a cause of action,75 this is probably not the case in Australia. There are
however, conflicting views about whether section 120(3) of the Trade Marks
Act 1995 (Cth) provides some limited form of dilution protection in certain
circumstances for owners of well-known trade marks.76 The fact that nearly
two decades after the inclusion of section 120(3) into Australian trade mark
law there is no definitive ruling which supports that proposition seems to
confirm that trade mark dilution is not a current part of Australian trade mark
law.77 And rightly so, if one accepts that the primary function of the trade

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
74

"" See:"Desai"and"Magliocca,"above"n"25,"1711."

75

"" See"s"10(3)"of"the"Trade"Marks"Act"1994"(UK)"c"26"and"in"the"United"States"see"Federal"
Trademark" Dilution" Act" of" 1995," Pub" L" 10498," 109" Stat" 985" which" amended" the"
Lanham"Act"15"USS""1051"(1946).""

76

"" See" for" example:" Michael" Handler," Trade" Mark" Dilution" in" Australia?" (2007)" 29"
European" Intellectual" Property" Review" 307" giving" a" narrow" interpretation" of" the"
section."Contra"Maurice"Gonslaves"and"Patrick"Flynn,"Dilution"Down"Under:"The"
Protection"of"Well^Known"Trade"Marks"in"Australia"28"(2006)"European"Intellectual"
Property"Review"171,"who"argue"that"s"120(3)"of"the"Trade"Marks"Act"1995"(Cth)"is"an"
explicit"anti^dilution"provision.""

77""

In"fact"there"have"been"no"successful"cases"decided"under"s"120(3)"in"Australia,"let"
alone"any"judicial"clarification"on"its"precise"scope.""Only"a"handful"of"cases"have"
made" reference" to" the" connection" between" 120(3)" and" dilution," although" this" has"
done" nothing" to" clarify" the" issue." See:" Campomar" Sociedad" Limitada" v" Nike"
International"Ltd"(2000)"202"CLR"45,"66."Also"see:"CocaVCola"Co"v"AllVFect"Distributors"
Ltd" (1998)" 43" IPR" 47," 65." The" other" decided" cases" have" all" been" interlocutory"
applications"and"have"mostly"only"shed"light"on"what"it"means"to"be"the"owner"of"a"
well^known"trade"mark."See"for"example:"San"Remo"Macaroni"Company"Pty"Ltd"v"San"
Remo"Gourmet"Coffee"Pty"Ltd"(2000)"50"IPR"321.""

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Journal of Law, Information and Science

Vol 23(2) 2014-2015

mark is an economic function, and that the key harm in which trade mark law
seeks to remedy is consumer confusion. Even so, 3D printing may bring this
issue to the fore and trade mark owners may seek to use section 120(3) to
broaden the ambit of trade mark infringement, particularly since many 3D
print uses of trade marks do not fit squarely within the traditional grounds of
trade mark infringement.78
While the preceding analysis has focused on how 3D printing facilitates the
reproduction of 2D trade marks on 3D objects and ipso facto trade mark
infringement, 3D printing also makes it possible to reproduce 3D trade marks
with ease, and without the permission of the trade mark owner. This is
another important flashpoint at which 3D printing and trade mark law will
collide, raising the same liability issues as the reproduction of 2D trade marks.
And as 3D printing technologies improve and becomes more mainstream at a
commercial and consumer level, the above canvassed scenarios may become
more common place. Indeed, it may become the norm, and in the same way
that modern technology has led to the democratisation of content distribution,
3D prining may very well lead to a democratisation of objects. This might
further result in an increase in counterfeit products, although this is very
much dependant on the improvements in 3D print quality.
At present, for mass produced items, traditional manufacturing processes are
decidedly more efficient than 3D print, but this may change in the future.79 At
a consumer level however, printing personal fashion items and accessories is
already a reality.80 Thus, the ability of consumers to freely download and
print their own knock-off designer sunglasses, handbags, jewellery and even
furniture may spawn a digital music and movie file sharing equivalent for
physical things an equivalent that may threaten to undermine the entire
business model of those particular industries.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
78

"" It"is"worth"observing"that,"in"its"current"form,"s"120(3)"would"not"assist"trade"mark"
owners"in"stopping"the"unauthorised"reproduction"of"their"goods"or"trade"marks,"
as"it"only"applies"to"cases"where"the"defendant"is"using"a"trade"mark"with"respect"
to"goods"and"services"which"are"unrelated"to"the"class"of"goods"or"services"to"which"
the"plaintiffs"trade"mark"is"registered."As"such,"the"use"of"the"Mercedes"Benz"trade"
mark" on" a" Toyota" Corolla" vehicle" would" not" fall" under" s" 120(3)," for" the" same"
reason.""

79

"" This"has"been"acknowledged"in"a"report"into"consumers"and"3D"print"which"found"
that"utaking"into"account"accessibility"to"materials,"sophisticated"printing"machines,"
costs"and"economics"for"the"average"user,"the"impact"of"this"technology"will"not"be"
felt" among" the" general" public" for" a" few" years" to" come.u" See:" Mendis" and" Secchi,"
above"n"4,"45."

80

"" And" indeed" a" preference" for" 3D" print" enthusiasts," with" fashion" and" jewellery"
among" the" most" popular" categories/tags" used" on" 3D" printing" online" sharing"
platforms."See:"Mendis"and"Secchi,"above"n"4,"32."

EAP 21

Flashpoints in 3D Printing and Trade Mark Law

4.3 The Incumbent Response

As the foregoing discussion has highlighted, there are various enforcement
issues trade mark owners must deal with as 3D print technology develops,
and consequently, a number of approaches they might take. Firstly, brand
owners may choose to respond by strictly and heavy-handedly enforcing
their rights (or threatening to do so via cease and desist letters), in order to
extend the reach of their monopolies beyond commercial uses and into the
homes of 3D hobbyists. They may also seek to play down the significance of
the use requirement in order to do so, although past precedent suggests the
courts are unlikely to support such an argument, where use of a trade mark
for embellishment purposes has been looked upon favourably and not
considered to be use as a badge of origin.81
As many trade mark uses associated with 3D printing will not fall within the
scope of sections 120(1)(2) of the Act, trade mark owners may look to
extend their monopoly in other ways. In particular, the owners of well-known
trade marks may embark on a campaign imploring lawmakers for stronger
protection of their brands, in the same way as the copyright content lobby
have implored Parliament for among other things, tougher penalties against
music and movie piracy. With respect to trade marks, the lobbying may
extend to greater protection for the owners of well-known marks, including
dilution protection, and harsher criminal penalties for wilful trade mark
counterfeiting.82

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
81

"" See"Top"Heavy"Pty"Ltd"v"Killin"(1996)"34"IPR"282."On"this"further"see"Adam"Open"AG"
v" Autec" AG" Case" (C^48/05)" [2007]" ECR" I^01017)" which" involved" the" use" of" the"
registered" Adam" Opel" logo" on" the" radiator" grill" of" an" accurately" scaled" replica"
model" of" the" Open" Astra" V8" coupe." " The" ECJ" confirmed" that" there" would" not" be"
infringing"use"if"the"average"consumer"understood"the"use"of"the"mark"to"indicate"
that"this"was"a"model"of"an"Opel"car,"as"the"origin"function"of"the"mark"would"not"
be" affected." When" the" matter" went" back" to" the" referring" court," they" held" that" the"
use"of"the"original"logo"on"the"goods"did"not"fulfil"any"of"the"functions"of"the"trade"
mark"as"the"relevant"consumer"would"merely"regard"the"logo"device"affixed"on"the"
defendantus"model"car"as"an"exact"copy"of"the"mark"that"the"original"car"had"affixed"
in" exactly" the" same" space." Consequently," the" mark" would" only" be" seen" as" a"
reproduction"of"a"detail"of"the"original"car."Relevant"consumers"would"not"regard"it"
as"a"reference"to"the"trade"origin"of"the"toy"car.""

82

"" As"it"stands,"the"criminal"penalties"for"trade"mark"infringement"can"be"found"in"pt"
14"of"the"Trade"Marks"Act"1995"(Cth)"and"includes"offences"of"applying"a"registered"
trade"mark"to"goods"knowing"that"the"mark"was"registered"or"being"reckless"as"to"
whether" the" mark" was" registered" under" s" 146." Penalties" include" fines" and"
imprisonment"for"up"to"five"years.""

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Vol 23(2) 2014-2015

Another possibility is that the scorn of trade mark owners may shift to the
manufacturers of 3D printers83 and even ISPs in demanding that they block
websites which host allegedly infringing material.84 This would seem
especially probable given that it is highly inefficient for trade mark owners to
pursue individuals for trade mark infringement involving the reproduction of
3D and 2D marks using their 3D printers at home. Doing nothing however is
not an option, as brands try to preserve the distinctiveness of their trade
marks and take control of their intellectual property portfolios.
If past experience and the response of the copyright content industries when
faced with the challenges of Internet piracy is anything to go by, all of the
possibilities canvassed in this section are a very likely reality. And in the same
way that these legacy industries lobbied for greater regulation and an
expansion of their legal rights, brand owners may have a similar reactionary
response, throwing their weight about and embarking on a litigation binge in
the process.85
An alternative and more optimistic reality may be that these brands and trade
mark owners engage with the public, or at least consumers and the DIY 3D
print community by authorising the kinds of activities that would otherwise
be legally actionable. They may even choose to make such designs available
to consumers as a way to capitalise on the public desire for their products,86 or
include consumers in the 3D print process.87 There are other opportunities for
trade mark owners which do not involve the strict enforcement of their legal
rights but may have commercial advantages. In particular, 3D printing offers
brands the opportunity to enhance brand power through safety, quality, and

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
83

"" Arguably" manufacturers" of" 3D" printers" may" be" liable" pursuant" to" the" criminal"
trade"mark"offences"and"in"particular"ss"1467"of"the"Trade"Marks"Act"1995"(Cth).""

84

"" Cartier,"Montblanc"and"Richemont"v"BSkyB,"BT,"TalkTalk,"EE"and"Virgin"(Open"Rights"
Group" intervening)" [2014]" EWHC" 3354" (Ch)" provides" a" glimpse" into" this" kind" of"
future." Here," the" Cartier" group" was" successful" in" its" application" for" a" blocking"
injunction" against" five" of" the" United" Kingdoms" major" ISPs," requiring" them" to"
block"six"websites"selling"counterfeit"goods.""

85

"" The" response" of" the" content" creators" has" been" simply" summarised" in" this" way" in"
Lemley,"above"n"62,"497^498."

86

"" Desai"and"Magliocca,"above"n"25,"1710"(footnote"99)."

87

"" Drawing"on"a"recent"initiative"involving"Hasbro,"who"appointed"Super"Fans"to"
create"Super"Art"inspired"by"their"iconic"MY"LITTLE"PONY"products."See"The"
Shapeways"Blog"Hasbro"&"Shapeways"Enable"3D"Printing"Fan"Art"with"
SuperFanArt"on"The"Shapeways"Blog"(21"July"2014)"
<http://www.shapeways.com/blog/archives/16759^hasbro^shapeways^enable^3d^
printing^fan^art^with^superfanart.html>"(29"May"2015)."

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Flashpoints in 3D Printing and Trade Mark Law

ongoing engagement with the company.88 Brands can do this by offering

authorised 3D print accessory files to respond to those consumers who want a
guarantee as to quality and safety. There are some promising examples
already emerging where trade mark owners are embracing 3D print,89 but it
remains to be seen whether these are one off initiatives or not.
If trade mark owners do not think more pragmatically about these things, and
if 3D printing does evolve to reach even a fraction of its potential, in time,
there is a risk that the likelihood of consumer confusion may be totally
eroded. In fact [t]here will be less, or perhaps no, reason for consumers to
think that any popular trade mark [or trade mark] observed outside of a store
was made by the brand owner.90 Thus, in ten years time or even sooner, an
equally valid conclusion may be that products that look similar are in fact,
homemade,91 obfuscating the risk of confusion and consequently the ability to
make out a case of trade mark infringement, passing off and misleading and
deceptive conduct all of which are predicated on the notion of confusion.
So how should policy makers respond to this crossroads, if at all? It would
seem that calls for wide-sweeping legislative reforms to respond to the
emergence of 3D print technology are premature.92 With respect to trade
marks, legislative reform which would mark a departure from the primary
economic underlying policy that justifies trade mark protection in Australia
would be unwise. In particular, any calls for the introduction of dilution
protection into Australia (or a broad reading of section 120(3)) should be met
with caution for the same reasons. It may however be a good time to reevaluate the role of non-conventional trade marks and the need for a specific
exclusion for functional marks. Further consideration should also be given to
the scope of secondary trade mark liability in Australia, a matter which was
referred to briefly in this article, but which is severely underdeveloped in case

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
88

"" Desai"and"Magliocca,"above"n"25,"1713."

89

"" See:"3ders.org,"Adidas"pops"up"in"London"with"giant"shoebox"&"3D"printing""(30"January"
2014)"<http://www.3ders.org/articles/20140130^adidas^pops^up^in^london^with^
giant^shoebox^3d^printing.html>"(29"May"2015)."Also"see:"Sandra"Helsel,"Adidas"
Incorporating"3D"Printing"into"Footware"Design"(2"December"2014)"Inside"3D"
Printing"<http://inside3dprinting.com/adidas^incorporating^3d^printing^into^
footware^design>"(29"May"2015)."

90

"" Desai"and"Magliocca,"above"n"25,"1711."

91

"" Ibid.""

92

"" This" is" consistent" with" the" findings" of" a" review" commissioned" by" the" UK"
Intellectual" Property" Office" which" considered" that" a" premature" call" for" legislative"
and" judicial" action" in" the" realm" of" 3D" printing" could" stifle" creativity" and"
innovation," and" impede" on" the" right" of" manufacturers" and" content" creators" to"
protect"their"livelihoods.""See"Mendis"and"Secchi,"above"n"4,"43."

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Vol 23(2) 2014-2015

law and in the academic literature. The jurisdictional issues alluded to would
also benefit from further analysis.

Conclusion

While there are some uses to which 3D printers can be put which may
infringe the rights of trade mark owners, this is mostly at the perimeters. So
although some commercial uses may impinge on the rights of trade mark
owners, personal uses are less controversial. That is not to say that such uses
are not objectionable to trade mark owners, who are concerned not just with
consumer confusion but with the dilution of their brand and controlling all
corners of their market. We have seen the rhetoric used by incumbent
companies who see 3D printing not as an opportunity but as a threat. This
rhetoric is often followed by calls for an expansion of intellectual property
laws to further entrench their rights in an attempt to restrict the continued use
of new and emerging technology. When it comes to the intersection of trade
mark law and 3D printing, there is no reason to expect anything different. 3D
printing therefore, is shaping up to be the next battleground for intellectual
property law overreach, with trade mark law set to play a pivotal role.

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