Repairing and re-using from an exclusive rights perspective: towards sustainable lifespan as part of a new normal?

This chapter examines repair activities and use of recycled materials from European patent and trade mark law perspectives by focusing on two examples demonstrating a strong property right impact on recycling efforts. The first is the consideration of normal lifespan in the repair or reconstruction dichotomy in the patent context, and the second a possibility to utilize trade marks in so-called upcycling activities. The chapter assesses the structures and interpretations of exclusive rights as impediments for the circular economy in achieving its full potential in terms of repairing products or re-using materials. The possibility for adopting a principle on "sustainable lifespan" into the IPR framework is discussed. Arguably, the scope of infringing acts should be re-defined in a way that only acts beyond the genuine purpose of maximising the lifespan of a product or material would be infringing acts. Additionally, “normal lifespan of the product” idea as part of repair and reconstruction dichotomy could be reassessed by applying a threshold of a ‘normal, sustainable lifespan for that particular category of product’, or an ‘environmentally-friendly lifespan’.