Book Review and Discount: Propriété intellectuelle et développement durable / Intellectual Property & Sustainable Development

This Kat is delighted to present a review of Propriété intellectuelle et développement durable / Intellectual Property & Sustainable Development, edited by Prof. Jacques de Werra (University of Geneva). Marking the 16th volume in the p®opriété intelle©tuelle - intelle©tual p®operty collection, this book features contributions by seven authors. The chapters emerged following the Journée de Droit de la Propriété Intellectuelle, which took place at the University of Geneva in collaboration with the Swiss Federal Institute of Intellectual Property and the International Association for the Protection of Intellectual Property on February 7, 2023.

The raison d'être of this book is encapsulated in the editor's acknowledgment of sustainability as a significant societal concern with far-reaching implications across various legal domains. The collection comprises a diverse array of perspectives, each focusing specifically on a different subject of the intersection of sustainability with IP. 

Olivia Dhordain's chapter, “Luxury, IP, and Sustainability - A Perspective”, illuminates the intersection of luxury and sustainability through the lens of a practitioner as she employs a series of “What ifs” to delve into potential pro-sustainability advancements in IP. 

Then, Nicolas Binctin's piece, “La lutte contre l'écoblanchiment (greenwashing) - Défis et développements récents” stands as the sole contribution in French, yet it sets itself apart with an in-depth examination of the deceptive practice of greenwashing within the scope of unfair competition law. 

In “How the IP System Promotes Sustainability - the WIPO GREEN Initiative”, Peter Oksen and Edward Kwakwa explain the function of the reworked WIPO GREEN database and its connection to the WIPO’s Green Technology Book and other acceleration projects. 

In “Does Intellectual Property Promote or Hinder Sustainability? The Case of Upcycling”, Irene Calboli and Siroos Tanner address the IP dimension of upcycling and explore ways to prevent this environmentally friendly practice from being hindered by claims of potential trademark and copyright infringement. 

Finally, in "The TRIPS Agreement and the Sustainable Disposal of IP-Infringing Goods - Lessons from WTO Dispute Settlement Cases," Wolf R. Meier-Ewert offers a meticulous analysis of Article 46 TRIPS as he underscores the role of proportionality for national authorities when ordering remedies for IP-infringing goods, arguing that destruction should be considered as ultima ratio-like remedy available to them.

Among all these contributions, here are some additional thoughts regarding this Kat's favorite, that is Calboli and Tanner’s chapter.

Likely influenced by the eco-conscious Swedish lifestyle and the general hype around upcycling and reinvention, especially in the fashion scene, it was inevitable for this Kat to be intrigued by this particular chapter. Despite having a solely U.S.-centred perspective, it — unsurprisingly —managed to grasp the essence of the topic globally. Setting aside copyright implications, the authors managed to succinctly encapsulate the entire issue of upcycling in the following 49 words: 

Under current IP rules, upcycling could constitute trademark infringement, trademark dilution, tarnishment, false advertising, and unfair competition. In addition, a recurrent complaint by trademark owners, particularly of luxury products, is that upcycling could hide counterfeited products, especially when the goods are sold in large quantities and are sold online.

The trademark challenges faced by practitioners of upcycling techniques are unlikely to be resolved in the current state. While the doctrine of exhaustion may not provide a viable solution in cases involving “material differences”, the principle of fair use can be effectively employed as “unrelated parties can use a mark to identify or refer to the trademarked product so long as the reference does not suggest endorsement or affiliation”. The analysis concludes with a review of recent US cases. Unfortunately, some of these disputes ended in out-of-court settlements, leaving the circular economy market without clear judicial guidance.

Overall impression 

This edited collection adeptly navigates the highly topical issue of sustainability and its correlation with the different intellectual property “ecosystems”, investigating not only issues related to patents and trademarks but also touching upon copyright and unfair competition law. Beyond presenting a thought-provoking exploration, the true asset of this work is its versatility by integrating diverse perspectives from both practice and academia. It stands as a distinctive contribution to the ongoing dialogue that undoubtedly will be appreciated by researchers and practitioners alike. 

Details: 

Available in Hardback & Paperback 

Extent 112 

ISBN 978-3-7255-8968-5

Publisher Schulthess Médias Juridiques SA 

For those wishing to purchase the book, a special discount has kindly been provided by Schulthess, available here until 07/04/2024.