Manufacturing

In a previous series of posts, we explored several copyright issues as they apply to 3D printing. In this series, we will address the impact of 3D printing on trademark infringement by counterfeiting. Here, we will address the pros and cons of molding your mark directly into your goods in the context of 3D printing and counterfeiting.

In Part 2 of this series, we will evaluate potential benefits and pitfalls that businesses may encounter when applying a mark to products at a later stage in manufacturing (e.g., via sticker or ink-printing).

In Part 3, we will look at some hypothetical “counterfeiting” and trademark enforcement situations, and discuss the impact of 3D printing your mark into your product as compared to ink-printing.

Update to the TMT Industry Insider article, “New Federal Safety Standard Proposed for Phthalates in Children’s Toys and Certain Child Care Articles,” which was posted on February 12, 2015. The deadline to submit comments on the proposed CPSC rule on phthalates has been extended to April 15, 2015.

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Additive manufacturing, otherwise known as 3D printing (3DP), offers exciting possibilities that will impact any number of industries. In the legal field, much of the focus remains on product liability and intellectual property issues, such as patent and copyright law. However, as with any new technology, many of the rules affecting the 3DP industry will be decided in Congress and administrative agencies rather than in courtrooms.

As yet, 3DP remains largely unregulated absent a few exceptions such as firearms. As the technology becomes more mainstream, however, manufacturers and users of 3DP would be foolish to assume the trend will continue. Adding to the potential complexity is that a technology capable of creating anything from body parts to food to automobiles is likely to come under the jurisdiction of a large number of Congressional committees and administrative agencies. Additionally, the IP issues that many lawyers within the industry focus on could just as easily be decided within Congress as within the courts.

On Sunday, March 1, 2015, CBS newsmagazine “60 Minutes” ran a lengthy piece reported by Anderson Cooper regarding accusations that Lumber Liquidators imported laminated flooring products that did not meet the standards set by the California Air Resources Board (CARB) for levels of formaldehyde. The focus of the story was on Lumber Liquidators, but the issue is likely to affect almost every importer of flooring and other wood products from China.

During the segment, Cooper referenced various lawsuits that are pending against Lumber Liquidators alleging that the company failed to meet CARB standards in California for formaldehyde. Cooper interviewed the CEO of Lumber Liquidators, Robert Lynch. Lynch said the company has a good system in place and checks carefully to make sure that CARB standards are met.

After making this statement, Lynch was shown a video interview of the plant manager of a Chinese plant that manufactures products for Lumber Liquidators. In the video, the plant manager plainly states that the flooring did not meet CARB standards. The journalist narrating the video adds that visits made to two other plants that manufacture flooring for the company revealed that the company’s flooring failed to meet the standards.

A new and more stringent federal safety standard for phthalates in children’s toys and certain child care articles was proposed by the U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) on Dec. 30, 2014. See Consumer Product Safety Commission, Prohibition of Children’s Toys and Child Care Articles Containing Specified Phthalates, 79 Fed. Reg. 78324 (Dec. 30, 2014) (amending 16 C.F.R. § 1307). This proposed rule on phthalates (the “proposed rule”) would establish a new federal standard on the use of specified phthalates in children’s toys and child care articles and expand the list of permanently banned phthalates under current law.

In Part 1 and Part 2 of this series, we discussed copyright issues for 3D printers. Not all companies have made the decision to jump into the world of 3D printing. Parts 1 and 2 may not have applied to you at all. However, no matter your business, your company may have to deal with a third party printing your company’s product, in violation of your rights.

If a direct competitor has begun printing a product which is clearly in violation of your copyright, enforcement is relatively straight forward. However, the scary (and revolutionary) thing about 3D printers is that anyone can print your product from the comfort of their easy chair. Infringers are no longer restricted to the few businesses that can afford to ramp up large-scale production. How do you handle enforcement if the infringer is a relatively small time start-up? What if the infringer is a fan of your product?

At a high level, creating a 3D printed product involves several steps. First, the product itself is conceived. Next, the product is designed in a computer aided design program, and must be converted into a set of electronic instructions that tell the 3D printer how to create the product. In some instances, the CAD program itself may create the printer instructions. The last step is the actual printing of the product. Not all businesses can employ in-house designers and technical personnel who are capable of engineering a product and/or creating printing instructions for that product. For those that can, it may still be more economical to hire outside help from time to time.

In this three-part series, we will discuss various copyright issues that may arise from 3D printing. The first two posts in the series will address copyright issues for companies that are just beginning to utilize (or are thinking about utilizing) 3D printing. The final post in this series, however, will address a company’s reactions to other 3D printers who create potentially infringing products. In this post specifically, we will address some basic copyright pitfalls of 3D printers.

Copyright laws, of course, protect artistic works by guaranteeing their authors the right to control how those works are reproduced, distributed, modified, etc. Many types of works in the visual arts may be fodder for copyright infringement by 3D printers; sculptural works are the most likely candidates. Using a 3D printer to recreate a copyrighted work or a derivative of a copyrighted work is likely to be textbook copyright infringement. 3D printing has not created many new copyright infringement issues, but has instead allowed for such infringements to occur much more easily.

While employers subject to the Family and Medical Leave Act (FMLA) must provide unpaid sick leave to employees meeting certain requirements, no federal law requires employers to provide their employees with paid sick leave.  However, employers — including those already providing their employees with paid time off (PTO) — should be aware of the recent spate of state laws and local ordinances permitting employees to earn paid sick leave time.