Upcycling involves the creative reuse of materials that implicate a range of IPRs. Analyzed within the parameters of exhaustion, upcycling in practice illustrates the potential for the exhaustion doctrine in unleashing creativity through reusing and repurposing works. But this potential is limited by the existing contours of exhaustion, specifically its roots in the distribution rights and its uncertain expansion into repair and reconstruction. These limitations within the exhaustion doctrine are magnified through the overlap of rights in upcycled works: copyright with trademark, trademark with design rights. This chapter sets forth the policies underlying recognition of upcycling as permitted use within the contours of exhaustion and overlapping IPR’s. Overlap does not accrete the rights of IP owners or subtract the rights of follow-on creators. Instead, upcycling invites a rethinking of the dynamic of creative ecosystems marked by the reality of markets, transformative creations, and the needs of creative communities. The chapter also critically examining the policies raised by upcycling mandates challenging the linear model of IP dissemination which traces the origin of works to the owner of broadly defined IPRs.

The expansion in subject matter of copyright, design and trade marks has made cumulation of protection a more common occurrence, even if the problem has long been recognised as a challenge for intellectual property law. EU law has no consistent approach to overlapping subject matter. In some cases, cumulation is permitted (and perhaps even mandatory). In others, it is looked upon with disfavour. However, it is clear that when regimes clash and cumulation rejected, trade mark law appears the one most likely to be regarded as pre-empted. This chapter considers reasons why this might be so, and finds most possible reasons wanting. However, this analysis does offer some important insights into the nature and challenges of trade mark law in Europe.