업사이클링 산업에서 상표법상 쟁점과 대응

The advancement of science and the development of production technology have brought about many changes to mankind and the natural environment. Since the Industrial Revolution in the 18th century, mankind has enjoyed material and cultural abundance and convenience of life, but at the cost of sacrificing nature, serious problems such as environmental pollution and resource depletion have occurred that threaten human survival. In order to overcome this, the international community is spurring ‘sustainable development’ and ‘transition to a circular economy society.’ However, it is not easy to clearly answer the question of whether the new paradigm shift implemented with the desire to promote sustainability through a circular economy will be well-consistent with the existing intellectual property law principles and to what extent intellectual property rights will play a role in the global implementation plan currently in progress. Traditional trademark law was intended only to protect the trust of consumers and protect trademark infringement, and the adoption of ecological solutions after the sale of a product was left to the discretion of the producer. However, in a circular economy society, the main concerns are contributions to environmental protection and sustainable production and consumption structures, and companies are under legal pressure to develop new production systems to reduce their environmental footprints. This paper summarizes various issues in trademark law that may conflict with the development of the upcycling industry and trademark rights, such as the use of trademarks, loss of identity, exhaustion of rights, and post-sale confusion, and suggest several measures to avoid conflicts with trademark law and enhance legal certainty in the circular economy for the upcycling industry. First, a defense of reference use can be considered as a way to resolve legal uncertainty surrounding the use of non-distinctive products, Second, the method of disclosing that it is an additional labeling or upcycling product and using the accompanying information in combination with trademarks, Third, repairers can independently add functions and upgrade new products and jointly brand them with the original manufacturer.