Trademark Law and Upcycling: Tailoring ‘Old-Fashioned’ Principles

This chapter analyzes upcycling practices from the perspective of trademark law, verifying their compatibility under the functional approach governing such exclusive right, whose impact on trade is not going to diminish in the context of a contemporary market increasingly dominated by communicative and reputational logics of brands. The analysis refers to the new paradigm of the circular economy, within which upcycling tends to be included, in order to question whether this change of political horizon in the European production model may affect the lawfulness of such practices, similarly to what can be argued in light of EU case law for recycling and refurbishing practices. In this sense, correctness in product elaboration and presentation to the market, mirroring the actual positive (if not even sustainable) contribution of the upcycler, should play a decisive role to exclude trademark infringement. The analysis will further reflect upon the applicative side of this issue, questioning whether this permissive interpretation does not end up in a return to well-established ‘old-fashioned’ principles that, properly tailoring exclusivity according to a model of fair competition, offer a valuable counterbalance to the excesses of protection that the trademark evolution has long been suffering from, like other IP rights