En hållbar konsumtionsprincip? - En undersökning av hur den varumärkesrättsliga konsumtionsprincipen förhåller sig till EU-kommissionens handlingsplan för cirkulär ekonomi och principen om hållbar utveckling

Sammanfattning: Due to the climate crisis, the European Commission has presented A new Circular Economy Action Plan – For a cleaner and more competitive Europe. The main purpose of the action plan is to create a framework for sustainable products to change into a climate neutral society and decoupling economic growth from resource use. The action plan therefore states that conditions for reuse and repair, among other things, must be reinforced. This thesis aims to investigate how the trademark exhaustion principle intersect with the circular economy action plan and the principle of sustainable development, established in Article 3 FEU and Article 11 TFEU. The trademark exhaustion principle is stipulated in the chapter 1 § 12 of the Trademark Act, Article 15 in the Trademark Directive and Article 15 in the Trademark Regulation. The principle means that the proprietor of a trademark cannot prohibit its use in relation to goods which have been put out on the market in the Union under that trademark by the proprietor or with the proprietor’s consent. This limitation of the exclusive right of the proprietor is mainly motivated by competitive reasons. However, the trademark proprietor has the right to oppose further commercialization of the goods when there exist legitimate reasons, especially where the condition of the goods is changed or impaired after they have been put on the market. Situations where a trademark proprietor has legitimate reasons to oppose further commercialization have been developed by the European Court of Justice. The purpose with this thesis is therefore to investigate when the exclusive right of a trademark proprietor is exhausted and when a trademark proprietor has legitimate reasons to limit further commercialization. This investigation shows that the exclusive right of a trademark proprietor is exhausted when goods have been placed on the market in Union in such a way that the trademark proprietor has lost the control over the goods and can realize the economic value. If someone other than the trademark proprietor has brought the goods to the market, this requires the trademark proprietor’s consent. Such consent may be implied if it clearly reflects the will of the proprietor to refrain the exclusive right. This investigation also shows that a trademark proprietor has legitimate reasons to limit further commercialization in several situations. These situations include changes due to both abstract and material properties of a product. The question of when a trademark proprietor has the right to oppose further commercialization is particularly interesting when it comes to the principle of sustainable development and the circular economy action plan. There are currently relatively few decisions from the European Court of Justice where the issue of trademark exhaustion in relation to recycling, reuse and repair has been tried. However, the jurisprudence of the European Court of Justice states that a trademark proprietor has legitimate reason to limit further commercialization when a product has been reused in a way that seriously damages the reputation of the trademark proprietor. The trademark proprietor also has the right to oppose further commercialization when the product is being reused in such a way that gives the impression that there is a financial connection between the trademark proprietor and a third party. Even other ways of use can, such as advertising, can according to the European Court of Justice constitute legitimate reason, if it gives the impression of a financial relationship between the parties. Overall, the jurisprudence of the European Court of Justice means that third parties have a far-reaching obligation to take precautions when using products that have been put out on the market in the Union in order not to risk being guilty of trademark infringement. This investigation shows that the trademark exhaustion principle can cause limitation of third parties’ ability to reuse and repair products which have been put out on the market in the Union. The trademark exhaustion principle may therefore be seen as not compatible with the circular economy action plan, which aims to promote reuse and repair. Because of this, it is also possible to question whether the circular action plan can be considered compatible with the principle of sustainable development. This is because the exhaustion principle can cause limitations of the development of sustainable products, which can undermine the goal of sustainable development.