Current trademark law blocks upcycling and repair
Daniel R. Cahoy, 2023 – Robert G. and Caroline Schwartz Professor of Business Law, Research Director for the Center for the Business of Sustainability, Smeal College of Business, Pennsylvania State University “Trademark’s Grip Over Sustainability” Colorado Law Review, v94, n4, 6/1, https://lawreview.colorado.edu/print/volume-94/trademarks-grip-over-sustainability/ //DH
Overall, the understood barriers to upcycling and repair are strong, but there can be ways to circumvent them if the goal is simply producing a repaired or improved product. However, another legal threat to upcycling and repair exists, and it is much more likely to occur. That threat is trademark infringement or branding confusion. Firms may be able to assert consumer confusion as to a product’s source as a tool to stop third parties from offering a modified version of the original good. In addition to free riding off an established brand name, a producer may justify such action on the grounds of safety or quality as well.
There are signs that the trademark threat is growing even as consumers increasingly embrace sustainability and repair technologies become more dispersed and accessible. On the other hand, it is certainly possible for an upscaler or repairer to accomplish the beneficial activity without any confusion if consumers are aware of the parties’ respective roles. Unfortunately, the activities that create liability versus those that are fair uses are less than clear, and current jurisprudence contains many conflicting or contrary rules. Without a more established path, it is possible that a desirable path to sustainability will be reduced due to the fear of litigation.