Existing IP protections chill investment into sustainable business models for upcycling and repair

Current linear market patterns, characterized by rampant overconsumption, cast a looming shadow over the environment, contributing significantly to its degradation.1 In response, the urgent need for environmental consciousness is increasingly recognized, with various practices, such as repair, refurbishment, and fashion upcycling, having emerged as beacons of hope in mitigating the adverse effects of overconsumption.2 These practices represent tangible efforts to reduce the environmental footprint, especially in the context of unfolding climate change.3

However, an unexpected barrier obstructs these sustainable practices– intellectual property (IP) protection. Despite the pressing call for a shift in linear modes of consumption, IP laws fail to align with sustainability goals. Across jurisdictions, IP holders, wielding near-absolute control over their productions,4 are well-equipped to allege trademark or copyright infringement in relation to goods incorporating their intellectual creations. In certain cases, they have even already initiated legal actions against repair, refurbishment, and upcycling businesses in this regard.5 The internal mechanisms within IP laws, theoretically capable of safeguarding sustainable practices through concepts like IP exhaustion and exceptions, are often interpreted by the courts to favour stringent protection of IP holders, creating, at most, conflicting outcomes.6 This, in turn, generates legal uncertainty that further chills environmentally friendly practices and sustainable business models.7