In an earlier post, I explained why the expiry of patents related to Fused Deposition Modeling (FDM), initially patented by S. Scott Crump of Stratasys Inc. has helped lead to the recent explosion of 3D printers using that technology.
So you might think that everybody is making “FDM” printers now. But they aren’t, or more specifically, they can’t say that they are because “FDM” is trademarked in the United States by Stratasys. It’s important to remember that although patents will eventually expire, trademarks can last forever.
Crump filed that original patent in 1989 and founded Stratasys the same year, but you’ll see that the term “FDM” doesn’t appear in the patent. I can’t say for sure, but it doesn’t seem like Crump immediately knew what he was going to call his technology. He did soon after though – in January 1991 before that first patent was issued in 1992, Stratasys filed for a trademark on “FDM” with respect to a “computer driven machine for making a physical embodiment of a graphic design by a material deposition process.” That trademark is still live today and by 1994 “fused deposition modeling” was even in the title of Stratasys patent filings.
Stratasys seems to take its trademarks seriously. At one time, they even filed to register the term ‘3D Printer’ though they later abandoned it. On the Stratasys website, you’ll find a whole list of their trademarks, including the following statement:
“Stratasys and FDM are registered trademarks, and FDM Technology, Fused Deposition Modeling, Stratasys shell logo, “For a 3D World”, and Smart Supports, are trademarks of Stratasys Ltd.”
Interestingly, FDM is noted as being registered while Fused Deposition Modeling isn’t. A USPTO trademark search seems to indicate that Stratasys never registered “Fused Deposition Modeling” and is relying on a common law trademark right. In many jurisdictions (including Canada and the United States), common law trademark rights protect unregistered uses – so in other words, if you use a unique word mark or logo to identify your business, common law trademark rights may allow you to stop others from using it in the same area. But any IP lawyer will tell you that common law trademarks offer less protection than registered ones. Incidentally, this relates to why you sometimes see ® and sometimes ™ next to a trademark. The former is supposed to be reserved for registered marks, while the latter is used for common law marks. Using them (correctly) is important as it serves as notice that you care about your marks and want people to treat them as protected trademarks.
But back to the point: You can’t sell your “computer driven machine for making a physical embodiment of a graphic design by a material deposition process” as an “FDM” printer in the United States because only Stratasys can do that. And they’re trying to expand the scope of their “FDM” protection; a more recently filed Stratasys trademark for “FDM” covers “Thermoplastic polymeric materials in the form of thermoplastic filaments or strands used to create three-dimensional parts from digital data in a freeform fabrication process.”
So, because they can’t use FDM, 3D printer manufacturers call it something else, like thermoplastic extrusion. Meanwhile, open-source self-replicating printer upstarts RepRap are pushing their own name: Fused Filament Fabrication or “FFF” which seems like it can be used by anyone and means the same thing as FDM.
Bottom line: IP strategies can extend some forms of protection of even while others expire. Although many don’t consider trademarking technology names at early patent stages, it can be a way for companies to exert brand control over a concept or technology past patent expiry. In the case of 3D printing, it means adding a small but real hurdle for low-cost and/or open-source printer makers to overcome.