REDEFINING EXHAUSTION: MATERIAL DIFFERENCES, AFTERMARKET MODIFICATIONS AND TRADEMARK PROTECTION

In this contemporary landscape, it is certain that we all are aware of the culture of thrifting and second-hand markets. But have you ever wondered that the branded scarf you’ve excavated from the large pile of clothes and bought in a substantially cheap price, end up in a thrift store? It is obvious that those are goods were discarded then sold by their owners to the thrift stores but there is more to it, especially when the brands are so concerned about the presentation, quality and distinctness of their trademarked goods. This underscores the continuous relevance of the doctrine of trademark exhaustion, the operation of which facilitates the circulation of genuine goods beyond their initial sale. However, its application demands, that the goods are not altered and are sold in their original condition, which is often uncertain to materialise because frequently the re-entry of such goods in the markets are accompanied by after-market modifications such as refurbishment, repackaging, re-branding and even creative customization particularly where such alterations are complemented by the evolving societal pursuits like globalisation, the goals of sustainable development, prominence of fundamental rights and creative freedom. Hence, by the virtue of the foregoing the courts are presented with a formidable legal challenge to determine the threshold at which such modifications cross into trademark infringement, alongside undertaking a multifaceted exercise to balance the legitimate interest of trademark owners, resellers and especially the consumers.