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					The Law Of Shapes To Come

 3D Printing And The Protection of
              Shapes
              © Marty Schwimmer 2013
            Marty Schwimmer
•   Partner
•   Leason Ellis
•   IP Boutique
•   White Plains NY
•   Trademark, Copyright, Domain Names
              Shapes To Come
•   3D Printing Is Becoming Mainstream
•   How Does That Affect IP?
•   How Does IP Protect Shape?
•   How Should IP Protect Shape?
What Do We Mean By 3D Printing?
• Additive manufacturing takes virtual
  renderings of an object from CAD or
  animation modeling software and slices them
  into digital cross-sections. A print-head
  deposits a material onto build platform
  pursuant to those cross-sections.
http://www.viddler.com/v/14cb3675
3D Materials: Sawdust
3D Materials: Sand
3D Materials: Steel
3D Materials: Potters Clay
        Sources of Designs

• Design Software

• Download Pre-existing Designs

• Scanning
Sources: ‘Easy’ CAD/CAM – Autodesk
                 123D
Sources: Gaming
Sources: Spore
Sources: Shared Files - Thingiverse
Sources: ‘Service Bureau’ - Shapeways
             Next Big Thing?
• Lust – Revolutionize US Manufacturing

• Fear – You Can Print Guns
Next Big Thing?
Downloads: Pirate Bay: ‘Physibles’
Sources: Scanning
http://www.youtube.com/watch?v=FGilpqOTQ
YQ
            Shapes To Come
• How Will 3D Printing Be Deployed?

• What Products Are Most Susceptible to
  Copying?
         Inexpensive 3D Objects
•   Spare/Replacement Parts
•   Smartphone Cases
•   Electronics Casings
•   Jewelry
•   Toys
  IP Response To New Technology
• Redefining Fair Use

• Redefining Indirect or Intermediate Liability
   Copyright Cases: Photocopying
• American Geophysical Union v Texaco, 60 F.3d
  913 (2d Cir 1994)

• Texaco scientists photocopying articles from
  professional journals

• Articulated the standard for professional fair
  use
        Copyright: Photocopying
• Basic Books v Kinkos, 758 F.Supp. 1522 (SDNY
  1991); Princeton University Press v Michigan
  Document Services, 99 F.3d 1381 (6th Cir 1996)

• Copy Shops selling ‘coursepacks’ to students

• Articulates standards for ‘for-profit’ fair use in
  an academic setting
             Copyright: VCRs
• Sony Corp v Universal City Studios, 464 U.S.
  417 (1984) “Betamax Decision”

• A Case Against the Producer of the Technology

• Does the Technology Have Significant Non-
  Infringing Uses?
             Copyright: MP3
• A&M Records v Napster, 239 F.3d 1004 (2001)

• Peer-to-peer file-sharing

• Napster had actual knowledge of specific
  infringement
      Copyright: MP3: Grokster
• MGM Studios v Grokster, 545 U.S. 913 (2005)

• Limitation on Betamax: Although a technology
  is capable of substantial non-infringing uses,
  “one who distributes a device with the object
  of promoting its use to infringe copyright, as
  shown by clear expression ... to foster
  infringement, is liable …”
 Trademark: Intermediate Liability
• Tiffany v eBay, 600 F.3d 93 (2d Cir 2010)



• Actual knowledge of a specific infringement as
  opposed to ‘should have known’ or ‘predictive
  knowledge.’
    Methods of Protecting Shape
• Design Patent

• Copyright

• Trade Dress
      Definition of Design Patent
• “the subject matter of a design patent
  application may relate to the configuration or
  shape of an article, to the surface
  ornamentation applied to an article, or to the
  combination of configuration and surface
  ornamentation. “
                  Copyright
• Pictorial, graphic, sculptural works but not the
  ‘mechanical or utilitarian aspects’ if the work
  is a useful article
               Trade Dress
• Visual appearance of a product or packaging
  that signifies source
     Definitions of Infringement
• DP: Egyptian Goddess standard – Substantial
  Similarity considered from the perspective of
  an ordinary observer who is familiar with the
  art.

• Copyright: Substantial Similarity and Access

• Trademark: Multi-factor test of Likelihood of
  Confusion
               Which One?
• All or Any
       Trademark: Functionality
• Specialized Seating v Greenwich (7th Cir 2010)
    Specialized Seating: The Mark
• a folding chair containing an X-frame profile, a
  flat channel flanked on each side by rolled
  edges around the perimeter of the chair, two
  cross bars with a flat channel and rolled edges
  at the back bottom of the chair, one cross bar
  with a flat channel and rolled edges on the
  front bottom, protruding feet, and a back
  support, the outer sides of which slant inward.
Specialized Seating: The Mark
  Specialized Seating: The Holding
• "[The chair] looks the way it does in order to
  be a better chair, not in order to be a better
  way of identifying who made it."
    Specialized Seating: Findings
• . . . the x-frame design achieves a favorable
  strength-to-weight ratio. Plastic chairs are
  lighter but weaker. Y-frame chairs are stronger
  but use more metal (and so are heavier and
  more expensive)
   Specialized: Functional Choices
• What this says to us is that all of the designs
  are functional, in the sense that they
  represent different compromises . . .A novel or
  distinctive selection of attributes on these
  many dimensions can be protected for a time
  by a utility patent
         Specialized: DP v TM
• When the patent expires, other firms are
  free to copy the design to the last detail
  in order to increase competition and
  drive down the price that consumers pay.
  See, e.g., Bonito Boats, Inc. v. Thunder
  Craft Boats, Inc., 489 U.S. 141 (1989)
 Jay Franco v Franek (7th Cir 2010)
• “Configuration of a round beach towel”
Franek: The Mark
         Franek: Functionality
• Sun bathers don’t have to get up
• Least amount of material needed for that
  function
• Circles are ‘rudimentary’
What is this?
What is This?
What is This?
What is This?
                   Dastar

• Dastar v Twenteth Century Fox, 539 US 23
  (2003)

• What is the affect of Dastar on Trade Dress
  Protection?
   Betty Boop (Fleischer v AVELA)
• Aesthetic Functionality – scratch that
Expired Rights: Was There A Contract?
• Dastar: Scalia: Mutant Copyright

• Specialized Seating: Easterbrook: ‘free to copy
  to the last detail’

• Betty Boop: INTA: Apply the nominative or
  descriptive fair use tests – is there confusion?
              So Ponder This
• MartReps will transmit to your 3D printer a
  design file it created by scanning in a recliner
  originally designed by the Eames many years
  ago. The design is no longer covered by design
  patent. MartReps is the source of the file. We
  also sell in our showroom, chairs that we built,
  derived from this design, in updated modern
  materials. We are not affiliated or endorsed
  by any other person or entity.
              Thank You
• Marty Schwimmer

• @trademarkblog

• www.trademarkblog.com

				
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