3D technology and opportunities created by the introduction of 3D printers is disrupting the standard supply and manufacturing schemes of traditional industries like healthcare, art and even food.
The combination of advancements in printing technology, the more and more powerful personal computers, the growth in online commerce, and the rising market demand for 3D printed objects has caused a recent flare of 3D printing technology.
As 3D printers have become increasingly accessible to the public, websites and online platforms that enable the sharing of CAD files have grown in popularity as these websites enable the sharing of applications that enable the consumer to directly manufacture an object from a source file.
The availability of 3D printing to end consumers and the ability to create objects is also impacting on the fashion world as consumers are today beginning to enjoy certain fashion products which are 3D printed.
However, the “do it yourself” industry is also raising many questions on the effects and the lawfulness of this new manufacturing procedure and a number of legal issues have arisen in intellectual property law driven industries like fashion.
I. What is 3D printing?
3D printing is a process of making three-dimensional solid objects from a digital file by placing successive layers of material until the entire object is created. Each of these layers can be seen as a thinly sliced horizontal cross-section of the eventual object. In order to create a product through a 3D printer, users make a virtual design of the object they want to print or create, and then to prepare a digital file in a compatible program suitable for printing (usually a CAD file). Users can create CAD files from scratch when the appropriate file is uploaded in the 3D printer, and then printer creates the object layer by layer.
II. 3D Printing and Fashion
Improvements in the 3D technology has increased its applicability on the fashion industry which has begun experimenting 3D printing. Recently, multinational footwear maker New Balance launched a collaboration with Formlabs to manufacture a sneaker with upgraded 3d printed forefoot. San Francisco based Continuum is a clothing company that allows customers to design 3D printed bikinis (as well as other products) by inputting their body shapes and measurements. Adidas, the giant footwear maker, has teamed up with a company called Carbon to make its first mass-produced 3D printed midsole. Carbon specializes in resin 3D printing and Adidas has tons of experience making sports and running shoes.
Consumers will be soon in a condition to manufacture their owns clothing at home. Is this something new? Not necessarily if we consider that before prêt-à-porter was introduced, certain bespoke clothing was not manufactured necessarily by tailors but also at home by family members of end users. However this innovative manufacturing system is shifting the designers capabilities from stitching to software programming.
Indeed well-known fashion institutes and design schools around the world have 3D printers on their campuses. They are also offering courses in the field of 3D printed fashion. These learning institutions are providing students access to body scanning technologies and wearable technologies. There is a good chance that some of those students, with exposure to new technologies, will end up launching 3D printed fashion products which will accelerate the mainstreaming of this concept and leave their sewing machines in a closet.
Also, 3D printed fashion involves turning movable/flexible material into clothing. 3D printed dresses can potentially be as revolutionary as the sewing machine was almost two-hundred years ago.
When 3D printing was first used in fashion, the process was quite slow. One of the first attempts at making a 3D printed piece of clothing took seven entire days with the printer running 24 hours a day. Plus, the 3D printers in those days did not offer flexible printing material. However, technology has improved. It does not take 7 days anymore and flexible printing material is also available. The flexible material is known as TPU 92A-1 and it can be washed and ironed just like normal cloth. FilaFlex is another flexible material used to make 3D printed clothing.
Most of the 3D printed clothing is printed using the selective laser sintering process. This method of 3D printing offers the ability to make intricate designs and achieve a high level of detailing which is a requirement with fashion and clothing.
3D technology will allow young designers to introduce their products to the world. Such designers have several challenges, including having to deal with long lead times and minimum orders. With 3D technology, emerging designers can simply print orders as they are placed rather than have to scrounge to obtain enough financing for minimum orders and being stuck with unsold stock. If nothing else, 3D printing will enable them to create a sample quickly and cost- effectively. The technology also provides opportunities for those designers to test the market on a small scale by printing limited quantities of their product to determine whether their item is acceptable to the marketplace.
The impact of 3D printing on the fashion system presents several peculiar implications typical of this industry. These issues stretch from intellectual property to distribution and sustainability.
a) Intellectual Property issues
3D printing is an emerging digital technology that may disrupt certain areas of intellectual property law despite the its positive impact on the fashion industry.
Generally speaking, authenticity is also a potential issue that could affect consumers. How would a person know for sure that the design they are buying is indeed the work of the designer that is advertised?
Moreover the ability to quickly create, reproduce, modify, copy, transfer, share, post, and download CAD files for 3D printing has created complex intellectual property issues especially as the cost of 3D printers decreases.
As the manufacturing process is made easier with 3D printing 3D printers threaten owners of IP assets as fake goods can be manufactured by private persons in their homes. Indeed, 3D printing technology, is likely to create negative economic effects on holders of IP rights and their IP driven business models. The situation is not particularly visible yet, but as the technology improves and the prices for equipment and consumables goes down, 3D printing may become a mass phenomenon3D printing will potentiate the number of instances of infringement and overlap with other IPRs while exceptions, invalidity and exhaustion will be likely general infringement defenses.
This section will analyze the effect of 3D printing on three main intellectual property assets: Trademarks, Models and Copyright.
1) Trademarks
A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others. For certain authors, Trademark law is the most important form of protection for fashions and accessories being the most effective communication devices.[i]
Generally speaking, a trademark identifies the owner of the brand and prevents confusion among consumers. Needless to say, the fashion industry uses various types of trademarks. Traditionally fashion has used word marks to identify the goods of the manufacturers in the industry where it is common to find either personal names or fantasy names. The evolution of distinctive signs in recent decades has resulted in a variety of source identifiers other than traditional signs (eg, word and stylized trademarks). As a result, the legislature across the European Union and worldwide has broadened the capability for objects, actions, events and patterns, among others, to be registered as trademarks.
We therefore now commonly find that the Fashion Industry commonly files for the protection of pattern trademarks (which can be represented by an image that shows the pattern and how it is repeated) and position trademarks (which consist of a specific placement of a trademark on a product). However, where 3D printing seems to have a deeper impact, is on the three-dimensional trademarks, which are signs consisting of the shape of the goods.
However, many jurisdictions (like the EU) impose some limitations on registering shape marks. According to Article 4 (1)(e) of the Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks, signs which consist exclusively of: (i) the shape, or another characteristic, which results from the nature of the goods themselves; (ii) the shape, or another characteristic, of goods which is necessary to obtain a technical result; and (iii) the shape, or another characteristic, which gives substantial value to the goods, should not be registered. It means that the functional shape cannot be registered as a trademark under EU law.
As 3D printers mainly serve functional purposes, it appears that the protection sought by fashion designers under an EU three-dimensional trademark would fine severe obstacles in obtaining the registration of the shape of a product manufactured with a 3D printer. We have to remember that recently Nestle lost a battle before the Court of Justice of the European Union (CJEU) for registering its Kit Kat’s four finger shape because the shape was functional and not distinctive. Similarly, Lego’s three-dimensional red eight-stud brick shape could not be registered as a trademark, because the shape of the brick is necessary to obtain a technical result.
As many of the 3D prints will be functional shapes, these are excluded from the trademark registration but in that minority of the cases where a 3D print is distinctive but does not serve a functional purpose, it may be registerable.
However three-dimensional trademark find another obstacle when the registration is sought for fashion products. In order to be registered as a 3D mark, the shape must also not have any aesthetic or functional purpose. If this is so, the possibility of protecting a product manufactured with a 3D printer under trademark law narrows down dramatically and the designer should then seek protection through a patent of industrial invention, utility model, or by registering models.
On trademarks, one last note is mandatory when we look from the prospective of a “do it yourself” manufacturer who creates products with a 3D printer. Needles to say that the 3D printing manufacturer generally has no right to use the trademark owned by a third party on the product manufactured with a 3D printer. However, he will always be able to claim general defenses to the trademark infringement. Under EU Law, these are generally “defensive” defenses like exhaustion, fair use, absence of genuine use and acquiescence, in addition to “counterattack” defenses like invalidity and revocation.
2) Designs and Models
A design is defined as "the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colors, shape, texture and/or materials of the product itself and/or its ornamentation".
Designs may be protected if:
they are novel, that is if no design identical or differing only in immaterial details has been made available to the public;
they have individual character, that is the "informed user" would find the overall impression different from other designs which are available to the public. Where a design forms part of a more complex product, the novelty and individual character of the design are judged on the part of the design which is visible during normal use.
Registered and unregistered Community designs are available under EU Regulation 6/2002, which provide a unitary right covering the European Union. Protection for a registered Community design is for up to 25 years, subject to the payment of renewal fees every five years. The unregistered Community design lasts for three years after a design is made available to the public and infringement only occurs if the protected design has been copied.
Thus, EU Design Law simply protects the appearance of products as defined by their specific ‘features’. These features may be the result either of ‘ornamentation’ which is applied to a product (i.e. a two dimensional - 2D - image) or the product itself (a model - 3D).
Aside the Community Designs, each member State has adopted a legislation to protect designs and models at a national level.
It should be noted that under the Design regulation, the exclusivity granted has certain limitations. The most relevant limitations are found in Article 20 of the Design Regulation which are: (a) acts done privately and for non-commercial purposes; (b) acts done for experimental purposes; and (c) acts of reproduction for the purpose of making citations or of teaching, provided that such acts are compatible with fair trade practice and do not unduly prejudice the normal exploitation of the design, and that mention is made of the source.
As far as the fashion industry is concerned, a notable case under the Dutch case law is the Nadia Plesner decision from the Court of the Hague.
Here the court balanced the fundamental right of Louis Vuitton to peacefully enjoy its property right (i.e. design right) against the artistic freedom. The court found that an artist was allowed to use LV’s design of a multicolor canvas as applied to one of its own expensive handbags as part of a drawing called Simple Living where the LV-bag was being carried by a malnourished African child (together with a ‘Paris Hilton-dog’). By the same token, even the use of the same drawing as the motive on a T-shirt was allowed for. The artist explained that the bag was used as a symbol and as part of an attempt to draw attention to what she believed was a problematic difference in attention given to celebrities and to the famine which was going on in Darfur.
Under this framework, users of 3D printing for artistic, political or satirical or other private purposes and even for spare parts, will find some freedom of expression beyond the limited structure of EU design regulation.
3) Copyright
Generally speaking, we all know that copyright will protect the originality of a work and the creator’s right to reproduce it. This means that if copies of an original object are 3D printed without authorization, the creator can obtain relief under copyright law.
As we mentioned, anyone with access to a 3D printer (either at home or at a local print shop) is able to produce a tangible, usable product out of a digital design files (usually CAD files). CAD files are typically protected by copyright law and, for many business concerns, represent a highly valuable intellectual property asset.
On the other hand, despite its current and future potential importance to the economy, fashion can in some jurisdictions be awarded the same level of copyright protection as other creative industries.
This type of protection is sought by fashion houses in order to extend IP rights to products protected under the design regulation (which usually up to last 25 years) to a period of time usually equal to 70 years after the death of the author.
A fashion manufacturer who creates products with a 3D printer must always keep in mind that the creating a fashion product with a 2D printer can lead to a double step copyright infringement: the software file and the artistic and creative elements of the fashion product.
b) Supply Chain and Distribution.
Traditional manufacturing is based on the premise of identical, high-volume production. However, such structures are proving increasingly insufficient when faced with the ever-growing demand for customization, faster turnaround times and more efficient supply chains. The traditional approach to manufacturing sees raw materials sourced and products manufactured in large centralized factories. After production, the products are shipped to the end consumer.
3D printing introduces the concept of “distributed manufacturing”, which involves a digital network of decentralized production sites, spread across locations and connected by digital technology. Driven by digital connectivity, distributed manufacturing allows manufactures to simplify and minimize their material supply chains through online, digital platforms and data sharing. Distributed manufacturing could even involve producing parts in different locations before being assembled in a central location.
Distributed manufacturing can make supply chains more efficient.
Distributed production can reduce inventory, logistics and production costs in several ways. Since goods are produced close to, or at the point of need, production can move closer to the end customer. This not only eliminates costly logistics expenditure but also allows companies to produce goods close to their respective markets. Additionally, by storing a digital inventory as opposed to warehouses of physical stock, companies can also significantly reduce inventory costs. As far of the fashion industry is concerned, a better management of the inventory and stock allows important savings and reduces waste of unsold collections and products.
With the growing demand for customized products, manufacturers must increasingly find ways to tailor their goods to the specific needs of their customers. Traditionally, having a single, custom item designed, manufactured and delivered would mean long waiting times and higher costs for the consumer. However, distributed manufacturing, with its decentralized, “scaled-down” production, offers greater flexibility and agility to produce customized goods, adding value at a comparable price to mass-produced goods. A good example is Adidas: the sportswear giant has recently opened what it calls “Speedfactories” in Germany and the United States. These fully automated factories have been created to rapidly produce small batches of personalized sneakers, and according to Adidas, the company is able to bring its sportswear to market three times faster than with traditional manufacturing. While the majority of Adidas shoes are made in Asia, building its Speedfactories closer to consumers in both American and European markets has led to a much quicker shipping and, therefore, a better customer experience.
Distributed manufacturing offers the opportunity of rethinking traditional supply chains. Raw materials could be shipped to distributed locations instead of one centralized facility, offering greater flexibility, for example. Another opportunity is moving shipping closer to the end customer, which would impact both manufacturers and shipping companies, who may switch to an “on-demand” production service as opposed to storing physical inventories.
Last, 3D printing will allow companies and brands to create, in real-time, items tweaked and personalized by the consumer