Weaponization of trademarks could derail the transition to circularity

Entrepreneurs and larger firms are waking up to the fact that there is a viable market for recycled, repaired, and even upcycled goods. There is also an increasing desire on the consumer end for more sustainable products as well as measures to reduce landfill and other product disposal harms to the environment. Although some legal barriers to this new market are being actively debated, other barriers have taken a back seat and seem primed to surge only when increased business activity exposes the liability. This is the case with trademark law, which has the potential to substantially deter the small-firm and nonprofit actors that will likely lead this aspect of used-good evergreening.

This Article investigates emergent trademark barriers that have been substantially overlooked in the current discussion regarding product renewal, which has largely been concerned with the right to repair. It considers the surprising power that the doctrines of post-sale confusion, dilution, and repair-or-reconstruction possess to thwart legitimate and sustainable business activity. After reviewing the literature demonstrating that most confusion based on such legal theories is not harmful, this Article proposes some simple modifications to the current rules that would reduce uncertainty. It concludes that sustainable product lifecycles can be better supported when trademark barriers are reduced. Such a change would provide consumers with a more robust path to counter our disposable world.