Trademark law faces at least two effects from 3D printing. The technology promises to reduce cost barriers and thus disrupt trade dress protection. Yet the same technology may increase the importance of trademarks’ source function. 3D printing and related technologies such as digital scanning enable almost anyone to copy and produce something, such as the shape of a bottle or a doll, that may also have trade dress protection. Maintaining exclusivity for such protection is difficult, if not impossible. 3D printing thus resurrects the problems of when firms produce essentially the same goods. When consumers face many sources for arguably the same good, the claim that a good, parts, or a digital file comes from a particular source and has quality increases in importance. As such this chapter explains how 3D printing simultaneously challenges trade dress protection and resurrects trademark protection as an indication of source and quality.
This chapter seeks to explain why some emerging technologies pose more problems than others. Just because a technology disrupts and democratizes a practice does not make the change good. Technologies such as 3D printing and Crispr/Cas9 may help improve society and also increase the risk of catastrophic outcomes. These technologies may force changes in tort or contract law and in regulatory systems such as the Food and Drug Act or Environmental Protection Act. But emphasis on the law alone misses the larger point. Cost and ease alter risk management. Many can find out how to build a nuclear bomb, but the costs to build one are high. In contrast, new technologies promise to wed powerful, widespread knowledge with low production cost so that someone can engage in sophisticated creation in the proverbial garage. Such technology forces us to rethink the tools and nature of governance and regulation in the 21st century.