Current trademark protections don’t disrupt the upcycling and repair movements
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 first-sale and fair use defenses provide a strong initial base of rights for those who wish to repair, recondition, or even improve a product. So long as a consumer has access to relevant information about modifications and receives an honest description of the lack of connection with the trademark owner, liability based on purchaser confusion may be avoided. One might assume that this essentially solves the trademark issue. However, there are two lingering problems that are likely to increase the litigation burden and prevent at least some upcycled or repaired goods from entering the market. One is the ambiguity that surrounds the question of what amount of disclosure will retain first-sale rights. And the second is an additional theory of liability called post-sale confusion that does not depend on purchaser confusion. Taken together, they can create significant problems for businesses that support sustainable product renewal.