In a previous series of posts, we explored several copyright issues as they apply to 3D printing. In this series, we will address the impact of 3D printing on trademark infringement by counterfeiting. Here, we will address the pros and cons of molding your mark directly into your goods in the context of 3D printing and counterfeiting.
In Part 2 of this series, we will evaluate potential benefits and pitfalls that businesses may encounter when applying a mark to products at a later stage in manufacturing (e.g., via sticker or ink-printing).
In Part 3, we will look at some hypothetical “counterfeiting” and trademark enforcement situations, and discuss the impact of 3D printing your mark into your product as compared to ink-printing.
Pros and Cons of Current Molding Practices
Many companies choose to mold their trademarks directly into their goods for various reasons. Whether accurate or not, some companies believe that a molded mark evidences higher quality. Although the up-front cost for creating the mark-bearing mold may be somewhat higher, this expense is a one-time occurrence. The mark inherently becomes a part of all products produced by such molds. Companies can thereby avoid recurring costs and potential headaches associated with applying their mark onto each and every manufactured product with ink and/or stickers. Even where molding a mark directly into a product is not cost effective, molding may be necessary if a sticker or ink-printed mark would likely wear off during the life of the product. In addition, the up-front mold costs have also historically made counterfeiting such products more difficult.
Of course, with the positives come some negatives. Unless you use costly advanced molding practices, your mark is typically molded out of the same material (with the same color) as that portion of the product into which the mark is molded. Your mark may therefore blend in somewhat with the product, and colorfully intricate designs are likely not an option. And what if you decide to update a longstanding mark? Get ready to pay for the creation of new molds. Worse, what if you create a mold bearing a brand new mark, but then receive an unexpected Cease & Desist letter? The cost of new molds now has to weigh into your risk analysis. Not to mention, new molds take time. Everyone wants to be agile in the marketplace, but agility can be a challenge when molds are in play.
Pros and Cons of 3D Printing Practices
The above-discussed pros and cons are already part of the trademark calculus. However, on a go-forward basis in a 3D printed world, what positives and negatives are associated with molding your mark directly into your product? Some of the negatives of integrating your mark into your product fall away, and actually become positives. For example, it has long been the goal of both marketing personnel and trademark attorneys to create eye-arresting marks. With 3D printing, the homogeneously colored materials problem is alleviated. As 3D printing techniques advance, it will become easier to 3D print colorful and intricate designs into your products. No more hard to discern trademarks. Not to mention, 3D printing allows for increased agility in the marketplace. Changing your mark is as simple as obtaining new CAD drawings.
Many of the above-mentioned positives may remain the same: appearance of higher quality; one-time up-front cost to avoid recurring ink-printing costs; improved resistance to wear, etc. In fact, the up-front cost of molding (or, in this case, 3D printing) a product bearing your mark may be greatly reduced in the near future. The creation of a physical mold may be completely unnecessary. When 3D Printing your products, the only additional time and expense required to 3D print products bearing your mark would be a relatively minimal increase in initial CAD drawing costs.
But therein lies the rub.
As it becomes easier for you to print your marks integrally into your products, it will also become easier for counterfeiters. Products with integral trademarks will no longer prove a barrier to effective counterfeiting. Worse, 3D scanners are already on the market that can scan the physical configuration of your product. The scan can then be used to reproduce your product – molded mark and all – at a very low cost to the counterfeiter. This is classic trademark infringement by counterfeiting. You spend the time and money to create a mold (or CAD design) that beautifully imprints your mark into your product. While this used to be a boon to help prevent counterfeiting, it may now serve the opposite function. A counterfeiter gets a specimen of your product, scans it, and can 3D print trademark-bearing counterfeits with consumers none the wiser. That is not good for business.
Does this mean that molding (or 3D printing) your mark directly into your product is a bad idea? Probably not, unless a 3D scanner-toting counterfeiter is your worst nightmare. Molding (or, more likely, 3D printing) your mark into your product still carries quite a few benefits. Rather, we have to be all the more diligent when policing counterfeits.
In Part 2 of this series, we will discuss various alternatives to molding or 3D printing your mark directly into your product. In Part 3, we will discuss trademark infringement and counterfeiting issues that may arise depending on how you choose to apply your trademark to your product. Stay tuned.