ABSTRACT
Upcycling conserves resources by transforming waste and otherwise useless materials into products of greater value. While it is a much-needed practice during times of environmental crisis, it raises concerns for original product manufacturers who object to third parties offering repurposed products that incorporate their trade marks. The practice triggers allegations of misleading behaviour, misappropriation and reputational risks for the brands. European trade mark law does not offer effective tools to immunise upcycling practices a priori within the trade mark use rubric. Consequently, the centre of gravity needs to be relocated to other elements of the trade mark protection taxonomy: infringement analysis and limitations. The latter establishes the most appropriate framework for evaluating a wide range of interests and values; however, recent jurisprudence from the Court of Justice of the European Union (CJEU) on limitations of trade mark rights has positioned the former as a final recourse. The framework of infringement analysis empowers national judges with the responsibility and discretion to render decisions that reflect both the individual circumstances of each case and broader societal interests, including environmental considerations. Will this approach help coherently address major environmental issues and social concerns in EU trade mark law in the future.
Tischner, Anna, Trade Mark Law and Upcycling (April 15, 2025).
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