Upcycling’s the vital internal link to the sustainability transition, but strong trademark protection blocks it

The marketplace has increasingly focused its attention on efforts to eliminate the waste from broken or outdated products.[1] Not only is the case for repair or refurbishment premised on consumer savings, but there is also the belief that it contributes to saving the planet in some small way. Less waste means less landfill space and environmental damage from unnecessary production and disposal.[2] However, policymakers are waking up to the fact that there are barriers to repair and reuse, some of which are created by industries that would prefer to sell new products.[3] Measures to reduce barriers and even create a legal right to repair[4] are laudable, but they often relate to a relatively narrow set of facts: a consumer owns a particular item and wishes it repaired to function as initially purchased. This focus ignores the legal issues related to other important product reclamation and upcycling contexts that may actually be more important for a sustainable future.[5]

Consider the future of the internal combustion engine, one of the most durable applications of technology in modern history. Though it has been substantially improved over the years, the principle of exploding liquid fuel pushing cylinders to turn a crank shaft that eventually turns wheels is essentially the same as that established back in the 1870s.[6] This technological paradigm is now in flux as electric vehicles have come to be viewed as not only a viable option, but likely the future of personal transportation.[7] Various jurisdictions have mandated an end to the gas- or diesel-powered car within the next thirty years.[8]

The shift to electric vehicles has great significance for current gas-powered cars. It is not ridiculous to ask whether they will be available anywhere in the future, and in the near-term, to wonder how long they will be permitted on the road. This utility horizon necessarily impacts current vehicle purchases: if one might have difficulty selling a gas- or diesel-powered car in the future, that vehicle’s present value is reduced. Conversely, if an automobile owner simply has the option to switch out the internal combustion engine for an electric motor, some or all of that power-source anxiety would disappear.

In fact, it is possible to convert a gas-powered vehicle to electric power. Several companies now will convert conversions of certain models of cars to an electric powertrain, offering many of the advantages of new electric cars, including zero emissions and dramatic acceleration.[9] Although the modification process is more complicated than simply dropping in a “crate” replacement engine,[10] it can be accomplished in a manner that leaves the outer appearance of the car largely intact.[11] An old Porsche still looks like an old Porsche, yet it has many of the advantages of an electric car such as a Tesla.[12] And more importantly, the environment is the beneficiary, as a polluting vehicle is now suddenly a green alternative. Through such “upcycling,” a more sustainable world can be achieved with less waste.

But is that old Porsche still a “Porsche?” If not, who cares? Perhaps the owners of Porsche, Volkswagen AG,[13] who may be concerned that a car carrying their logos and shapes now functions as a significantly different car.[14] Even if the initial purchaser or modifier is not confused about the nature of the vehicle, others who view it post-modification may have substantially changed views about the qualities of the old Porsche. The signature sounds and driving characteristics—essentially, the physical brand—that make a car a valuable classic could be eliminated. The ensuing concern over the tarnished image is squarely within the domain of trademark law.

Trademarks identify the source of goods and services, reducing consumer search costs when one seeks to reconnect with the sensation of the refreshing soda, warmth of a winter-proof coat, or satisfaction of a high-quality automobile from a particular source.[15] They are focal points for consumer goodwill based on prior experience.[16] When those trademarks appear on goods that no longer reflect firm-specific qualities, litigation may ensue to address consumer confusion or brand dilution. It is relatively easy to imagine how trademark rights could interfere with sustainable uses of existing products. Unfortunately, legal restraints on trademark rights that would permit sustainable reuse are, at best, unclear and, at worst, not available in many jurisdictions. Trademark conflicts with sustainability goals may prove to be as significant an obstacle as other intellectual property rights more commonly cited.[17]