UPCYCLING AS A LEGAL LIMITATION ON TRADEMARK RIGHTS: RETHINKING TRADEMARK LAW FOR ENVIRONMENTAL SUSTAINABILITY

Abstract

The fashion industry is recognized as one of the world’s most polluting industries and generates a significant amount of waste each year. In response to growing environmental concerns, upcycling has emerged as a sustainable practice that transforms unused or discarded materials into products with added value while preserving the original qualities of the materials. However, where original trademarks remain visible on upcycled products, the practice may create legal uncertainty under trademark law.

This article examines the legal status of upcycling under Thai trademark law. It analyzes the rights of trademark owners under the Thai Trademark Act B.E. 2534 (1991), particularly the exclusive right under Section 44 and passing off protection under Section 46 paragraph two. The article further examines the limitations on trademark rights, namely the exhaustion of rights principle and fair use under Section 47, and evaluates whether these doctrines provide sufficient protection for upcycling activities.

To provide comparative perspectives, the article also examines the approaches adopted under  European Union (EU) and United States trademark law (US). The analysis demonstrates that both the EU and the US recognize limitations on trademark rights through exhaustion doctrines and fair use principles.

This article argues that Thai trademark law currently lacks a clear legal framework governing upcycling. The absence of statutory recognition of the exhaustion of rights principle, together with the uncertainty surrounding the application of the Section 47 fair use provision, leaves upcyclers exposed to potential trademark liability. Accordingly, legal reform is necessary to provide a safe harbor for upcycling practices.