Academic journal article Harvard Journal of Law & Technology

The End of Post-Sale Confusion: How Consumer 3D Printing Will Diminish the Function of Trademarks

Academic journal article Harvard Journal of Law & Technology

The End of Post-Sale Confusion: How Consumer 3D Printing Will Diminish the Function of Trademarks

Article excerpt

Table of Contents  I. INTRODUCTION II. CONSUMER 3D PRINTING: THE TECHNOLOGY AND THE INDUSTRY    A. The Capabilities of Consumer 3D Printing    B. The Market for Consumer 3D Printers and Services III. TRADEMARK LAW AND THE DOCTRINE OF POST-SALE CONFUSION    A. Trademark Law Generally    B. The Doctrine of Post-Sale Confusion    C. The Rationale for the Doctrine of Post-Sale Confusion    D. The Existing Criticism of Post-Sale Confusion IV. THE EFFECT OF 3D PRINTING ON POST-SALE CONFUSION    A. 3D Printable Products Are Within the Domain of Post       Sale Confusion    B. 3D Printing Will Diminish Consumer Expectations of Trademarks    C. 3D Printing in Contrast to Traditional Counterfeiting V. THE FUTURE OF POST-SALE CONFUSION    A. Growing Public Awareness of 3D Printing    B. Judicial Response    C. Congressional Response VI. CONCLUSION 


In January of 2013, the Finnish telecom giant Nokia publicly released design files enabling the production of cases for its newly launched smartphones, Lumia 820 and Lumia 520, on consumer-grade three-dimensional ("3D") printers. (1) Nokia made its computer-aided design ("CAD") files available to the public, subject to a Creative Commons license, (2) allowing people to print cases directly using their own consumer 3D printer or upload the CAD files to a 3D printing service to print cases for a fee. (3) The 3D printing community heralded Nokia as an innovator for becoming the first global manufacturer to make CAD files for their products publicly available. (4) Yet, what seemed nothing more than a novel promotional campaign actually marked a paradigm shift in the functioning of trade-trademarks.

Nokia's decision to make CAD files for some of its products publicly available was a radical departure from the traditional philosophy of technology companies. For instance, Nokia's chief competitor, Apple, only makes its trademarks available to third-party accessory manufacturers subject to stringent license requirements. (5) These manufacturers are expressly forbidden from printing or engraving any of Apple's trademarks directly on their products. (6) Apple also asserts its trademark rights against counterfeiters in court, seeking injunctive and monetary relief against those who would manufacture or sell knockoff versions of its products. (7)

By contrast, Nokia has provided CAD files to the public in order to enable the fabrication of products featuring Nokia's logo. (8) The terms and conditions of Nokia's user agreement provide that the CAD files are offered through a Creative Commons license whereby downloaders agree to only use the CAD files for private purposes, ac knowledging that they are not licensed to use Nokia's intellectual property--including the Nokia trademark--for commercial purposes. (9) As such, the Nokia example signals the beginning of trademarked products that are produced neither directly by a trademark owner nor by a licensed manufacturer entering the public marketplace.

Historically, trademarks were relied upon to indicate the source of origin of a product. (10) In the early twentieth century, the emergence of trademark licensing attenuated the relationship between the manufacturer and the trademark owner. (11) 3D printing will further diminish this connection between the trademark owner and its ultimate manufacturer by enabling consumers to make their own trademark-bearing products without any oversight by or contractual relationship with the trademark owner. (12) This new understanding of a product's origin will impact how consumers perceive trademarks in a post-sale environment where labeling and packaging attesting to authenticity is absent. It may soon become unreasonable for consumers to expect brands to exert any control over the quality and quantity of products that display their trademarks. (13)

This Note discusses how the emergence of consumer 3D printing will impact the role of trademarks in society by undermining the rationale of the post-sale confusion doctrine. …

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