Upcycling describes the process of altering an existing product by modifying it, which in many instances involves improving it and consequently giving a new lease of life to a pre-existing product. It has been increasingly recognized as a promising way to reduce material and energy use, and to promote sustainable production and consumption. Alongside this, there is an increasing customer preference towards environmentally friendly products and minimal waste. Unsurprisingly, upcycling has received considerable attention, particularly in discussion about the circular economy. However, upcycling also poses a challenge to businesses looking to control their IP rights, particularly those seeking to protect their brand and control their reputation through IP protections. This chapter explores these issues, with particular reference to trademark and copyright law in the Pacific region.

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.

This chapter analyzes upcycling from the perspective of copyright infringement. Upcycling should be encouraged, especially as it makes recycling an attractive and exciting option for consumers. IP rights (IPRs) can however be seen as a barrier for such utilization of raw material. This is because traditional IP doctrines do not fully recognize these kinds of interests, despite sustainability’s fundamental relevance in society and in the Treaty of the Functioning of the EU. The chapter develops a new doctrinal standpoint to consider copyright infringements in these specific cases as a part of introducing a more general ‘sustainable lifespan’ principle in IPRs regulation.

In an era in which recycling is becoming almost an obligation that allows us to ensure the preservation of our planet, it is relevant to analyze the interferences between IPRs in the recycling activity. In this sense, it has been considered appropriate to study in this chapter the impact of the protection of artisanal and industrial geographical indications, especially now, when the European Union has adopted a new regulation. In Europe, artisanal and industrial geographical indications will protect porcelain, clothing, jewellery, and a wide variety of products resulting from the cultural heritage of European countries. It will be interesting in this regard to assess the limits that apply to geographical indications as IPRs. In particular, it will be interesting to analyze cases where parts of these protected products are used to create other recycled composite products, as well as the possibility of using recycled products for the creation of the protected products.

Fashion upcycling offers unprecedented opportunities for the sustainable reuse of clothing: using second-hand garments as raw materials for new creations, upcyclers can transform used pieces of clothing into new fashion products that may become even more sought-after than the source material. The productive reuse of garment components in upcycling projects is socially desirable in the light of the overarching policy goal to achieve environmental sustainability. However, the more individual fashion elements are protected by IP rights, the more legal obstacles arise. Fashion items may enjoy cumulative copyright, industrial design, and trademark protection. Accordingly, infringement claims may be based on several rights. Seeking to enhance legal certainty for upcyclers in light of the overarching objective to ensure a circular economy, it is thus important to develop horizontal defences that are applicable across different domains of IP law. Against this background, the essay will explain how the referential use concept known from trademark law can be transformed into a cross-cutting defence that dispels concerns about infringement not only in trademark law but also in industrial designs and copyright law.

This chapter analyzes upcycling through an economic lens. First, it discusses the similarities and differences between resale, recycling, and upcycling from an economic perspective. Next, it analyzes the incentives for producers in the primary market to engage with these markets further down the lifecycle of a product. The author argues that companies with sufficient market power in their primary market often have an incentive to try to control such aftermarkets, particularly in the case of resale or upcycling, in order to price discriminate in the primary market or to reduce competition in their primary market. Subsequently, the chapter discusses the role of IPRs in this and analyzes from a normative economic perspective (incentive rationale for IPRs), whether IPRs should grant producers control over resale and upcycling.

Upcycling involves the creative reuse of materials that implicate a range of IPRs. Analyzed within the parameters of exhaustion, upcycling in practice illustrates the potential for the exhaustion doctrine in unleashing creativity through reusing and repurposing works. But this potential is limited by the existing contours of exhaustion, specifically its roots in the distribution rights and its uncertain expansion into repair and reconstruction. These limitations within the exhaustion doctrine are magnified through the overlap of rights in upcycled works: copyright with trademark, trademark with design rights. This chapter sets forth the policies underlying recognition of upcycling as permitted use within the contours of exhaustion and overlapping IPR’s. Overlap does not accrete the rights of IP owners or subtract the rights of follow-on creators. Instead, upcycling invites a rethinking of the dynamic of creative ecosystems marked by the reality of markets, transformative creations, and the needs of creative communities. The chapter also critically examining the policies raised by upcycling mandates challenging the linear model of IP dissemination which traces the origin of works to the owner of broadly defined IPRs.

In recent years, and especially, after the pandemic, policymakers in Latin America and the Caribbean have become increasingly interested in promoting the principles of the circular economy as a core component of the region’s sustainable development. Under the banner of sustainability, the national and regional markets for circular economy items have grown and consumer preference for them has been attracted. However, the debate on the impact of IPRs on the upcycling of goods, which could be protected by an IPRs system, is still very young. This chapter examines whether IP laws interfere with the production and distribution of goods by analyzing national and regional regulations in selected countries in the region, where there is growing interest in circular economy products. In addition, an analysis of the legal defences available within the IP system for the relevant stakeholders will also be undertaken. In particular, the IP systems concerning trademarks, industrial designs, and copyright will be discussed. Finally, the chapter examines whether creating distinctive signs specific to the goods produced under these practices exist and whether this seems desirable.

This chapter presents some preliminary evidence about the way both mining firms and suppliers innovate in Chile and whether (and, if yes, how) they protect their innovations. It includes semi-structured interviews with senior executives at a sample of Chilean mining firms, mining, equipment, technology and services (METS) and universities. This analysis is complemented with information coming from an online survey applied to 300 Chilean METS. Finally, a group of twenty lawyers specializing in intellectual property was surveyed to provide their opinions regarding: the role of IP in the mining sector, the likely benefits of the introduction of a patent box mechanism in the Chilean legislation, and the role the Chilean IP Office (INAPI) is playing in this area. Interviews with INAPI’s senior staff members also present the policies implemented over the last years in order to promote the use of IP instruments in the mining sector.