COMMERCIAL QUESTIONS
DESIGNED TO IMPROVE YOUR COMMERCIAL AWARENESS
Firms want their trainees to understand that, today more than ever, lawyers need to be clued up about the commercial environment in which their clients operate. The Commercial Question section of LawCareers.Net is designed to get you thinking about the business world as it relates to your future career and the commercial issues that a modern lawyer must grapple with. Here is a selection of some of the best Commercial Questions from the past year – read, absorb and hone those commercial skills. 3D printing – the IP implications Question Unauthorised 3D printing – what use are IP rights? commercial purposes. Many of the printing systems used are employed only at the prototyping stage – for example, to provide an accurate method of perfecting a design before mass production methods are employed – with take- up particularly prevalent in the fashion, jewellery and automotive industries. The potential uses of 3D printing are much broader, and this provides both an opportunity for innovation and a concern for rights holders who worry that unlawful reproduction of their products will become too easy – and consequently too hard to combat. From a counterfeiting perspective, 3D printing technology allows the easy replication of items using simple materials, making items like buckles, jewellery and Answer 3D printing technology is increasingly being used for
Designs Design law does not recognise the concept of confusing similarity, which is peculiar to trademark rights. Instead, it requires that the “same overall impression” be created between the infringing product and the protected design. It also does not require that the object be inherently distinctive (although it must be novel). This makes it a particularly suitable tool for preventing the unauthorised reproduction of 3D printed products. Such products tend to be identical in appearance, easily creating the same overall impression, but can also be lacking in the level of distinctiveness necessary for trademark registration and enforcement. For fashion items in particular, unlawful 3D printing (like other modes of unlawful reproduction) will often best be stopped by registered and unregistered design rights. Unique fashion designs should be registered in the European Union or the United Kingdom to gain long- term protection of up to 25 years. It is important not to wait to file for registration – an application must be filed within the 12-month window following release of the design to the public. Without this, unregistered design rights can still be relied on, but they offer more limited protection in the United Kingdom (the test requires an exact or substantial copy of the design) and are of a shorter duration: 10 years in the United Kingdom and three years in the European Union. Trademarks 3D printed objects which are later unlawfully affixed with a word or logo mark will be protected by a trademark registration covering the same or similar word or logo, for the
reading glasses particularly suitable. Reproducing the designs is exact and fast on a small scale. Counterfeit goods made of basic materials can be produced with precision to look exactly like the real thing. Cheap, industrial-scale production to churn out all but the most simple of consumer goods is still a way off. As the technology develops and becomes cheaper, however, counterfeiters will be able to use 3D printing to mass produce goods in their home markets, reducing shipping costs and avoiding potential customs seizures. Enforcement against counterfeiters is likely to face challenges, particularly where multiple production and distribution sites are used within jurisdictions. Members of the public can also produce their own articles without purchasing them directly from retailers. File-sharing websites which allow transfer of the digital files (CAD files) needed to produce copies on the printers already exist. As the technology becomes more accessible, consumers may increasingly use those files to create copies of goods for themselves. Preventing this will be difficult. In most cases, exemptions and exceptions will apply for non- commercial, home-produced copies. That is true of patent, trademark and design law. The one exception is the copying of “artistic works’’: home users cannot make 3D prints of these specific types of product under copyright law as it stands (although this is currently under government review). Manufacturers and suppliers of 3D printers will rarely be caught; the current law of joint tortfeasorship is unlikely to make them liable, provided that their printers can be said to be for substantially legitimate uses. There is, however, potential for enforcement of copyright and even patent rights against CAD file sharers.
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