As companies increasingly consider utilizing 3-D printing in the production of apparel and footwear, they may not be aware of potential legal implications down the line.
Fashion law experts discussed 3-D printing’s legal standing at a New York Law School symposium on Friday, titled “Robot Couture: The Future of Fashion, Law and Technology,” and why new intellectual property (IP) legislation will need to be introduced to combat counterfeiting.
From a creative standpoint, 3-D printing encourages artistic expression and expands a designer’s ability to create. On the other hand, it also brings a whole new set of issues to the table, including IP rights violations, or counterfeiting.
“3-D printing is a very complex progress,” explained panelist Joseph Forgione, attorney and director of the Fashion Law Initiative. “It is additive manufacturing which is the process of making a three-dimensional solid object of virtually any shape from a digital model.”
Compared to a subtractive process, which is how clothing is typically made, 3-D printing requires the incorporation of data and layering of materials. First, 3-D printers obtain virtual design blueprints from computer aided design (CAD) or from scanning an existing object. These printers then read the design blueprint and lay down layers of raw material that gradually build up until a new object has been created.
According to Forgione, counterfeiters can easily download CAD files to quickly and cheaply produce unauthorized goods in their home markets, violating patent, trademark and copyrighting laws.
Although radio-frequency identification (RFID) technology can help in the fight against anti-counterfeiting, legal issues still prevail, including the fact that limited IP rights exist and there isn’t much case law available to handle counterfeiting.
“We are really trying very hard as counsel for brand owners to put all these measures in to make it more difficult for counterfeiters to put these products out,” Forgione said. “Brand owners are going to have to continue moving lockstep with this technology and make it more difficult for counterfeiters to put these products out.”
These measures would potentially include anti-counterfeiting legal regulation in regard to a brand’s product measurement and individual designs, so counterfeiters wouldn’t have room to replicate unauthorized merchandise.
Forgione also discussed the expansion of enforcement measures: “You will have to go after these individual counterfeiters with DMCA (Digital Millennium Copyright Act) to take down equivalent requests and show them that you are out there to make sure your brand is not misappropriated.”
Additional patents are also required to protect from future counterfeiting by enabling brands to be legally licensed by the government to keep their trademarks for many years.
“Patents are strong to have,” panelist and registered patent attorney Joseph Murphy said. “They are strict liability, there is no defense.”
With a patent, it is up to the patentee (brands) to regulate their licensed property, including 3-D innovations. Patents provide brands the power to enforce anti-counterfeiting and if violated, will provide immediate punishment to counterfeiters.
“In terms of copyright protection, the applicability to 3-D printing is quite broad,” said Julie Zerbo, editor-in-chief of The Fashion Law. “It can protect separable elements of fashion designs, the CAD designs used to print these items and original images that are printed on items that are 3-D printed.”
Zerbo pointed out that the DMCA could potentially provide protection should counterfeiters use the Internet to produce counterfeit 3-D products but because 3-D printing isn’t popular yet, it could be challenging for fashion brands to gain protection under this legislation right now.
“It is just at a point where we haven’t seen a lot of usage, so it is difficult to advise designers how exactly this would apply,” she said.
According to Zerbo, more international law doctrines and trade agreements will also form once 3-D printed products circulate in global markets. Although Congress and other U.S. regulatory bodies will most likely prioritize other consumer products, such as food and medicine, fashion will most likely come into play as soon as more 3-D consumer products are created and sold on the market.
With the establishment of more copyright legislation, the industry will be able to fight counterfeiting and protect the creativity of brands, designers and retailers in the coming years.
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