업사이클링과 유사 개념에 관한 소고

With the growing interest in sustainable consumption, the rise of the second-hand market, and the trend of personalizing objects, upcycling has become a popular trend. Upcycling has been praised for its ability to make eco-friendly consumption affordable, however, because of its nature of transforming an existing product into a new one, it may constitute trademark infringement. The specific legal assessment of upcycling can vary depending on how it is done, by whom, and at what level. Therefore, rather than stipulating that upcycling is infringement, it is necessary to examine infringement on a case-by-case basis, such as whether the trademark used is a registered or not, whether it is within the same or similar scope as the designated goods, who the actor is and whether the actor uses the trademark “as a business,” and whether the trademark is a famous, and whether exhaustion of rights is recognized. On the other hand, there were cases of trademark infringement related to activities that transformed goods, such as repairing, recycling and customizing. What distinguishes upcycling from these types of activities is that it does not focus on restoring the original product or its functionality, but rather on upgrading the original product by changing its design, color, or adding decorations. So far, there has only been one case of upcycling being directly challenged in Korea, but it is likely that the discussion will expand to other areas in the future. The issue surrounding trademark infringement in upcycling is essentially about the scope of protection when sustainable consumption and trademark rights collide. In this regard, identifying the definition of upcyling in the aspects of the trademark law and examining infringement through the interpretation of specific requirements will help to find a balance between trademark holders, consumers, and upcycling service providers.