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Mark P. McKenna and Lucas S. Osborn

This chapter explores the American and European experiences with respect to trademark protection in the context of digital goods such as 3D printable files and digitally distributed movies and songs. In the digital world, design and production can increasingly be separated. That has potentially destabilizing consequences for trademark law, which has historically been oriented toward indications of the origin of physical goods. Digitization also puts much more pressure on the boundaries between trademark, copyright and design laws, particularly in cases in which parties assert trademark claims against others based on the content of digital files. We note the greater frequency of such claims in the US and offer some hypotheses about the lack of those claims in Europe.