Publications

Traditionally, the debate on trade mark law and the public domain has focused on the strategic use of trade mark law to artificially prolong exclusive rights after the expiry of protection in intellectual property systems with a limited term, and the grant of trade mark rights covering public domain material, such as cultural signs and traditional cultural expressions. While the glamorous world of fashion offers examples of protection term extension and public domain re-appropriation cases, the following analysis focuses on fashion reuse in the circular economy as a phenomenon that can be placed in a public domain context. Considering the urgent need for measures to enhance legal certainty for sustainable fashion reuse in the circular economy, the question arises whether the time has come to discuss a limitation of trade mark rights and a corresponding broadening of the public domain. More concretely, it seems tempting to establish a new public domain by giving second-hand and unsold fashion items the status of freely available resources for sustainable upcycling and reuse in the circular economy—even if these fashion items bear protected third-party brand insignia. Exploring options for the practical implementation of this new public domain space, the analysis will yield the insight that the termination of trade mark rights is beyond reach. Alternatively, however, lawmakers and judges could consider introducing a robust principle of free reuse that shields initiatives leading to the sustainable reuse of trade-marked fashion items effectively against allegations of trade mark infringement.