Recycling, upcycling, and refill-packaging models are now widely promoted as ways to reduce waste, lower carbon emissions, and respond to consumer demand for sustainable products. However, complications arise when these environmentally driven trends intersect with intellectual property law—particularly where reused or altered packaging continues to display third parties’ registered trademarks. Adding to this complexity, Thailand’s draft Sustainable Packaging Management Act aims to introduce new environmental compliance obligations that businesses must navigate alongside existing trademark concerns.

Recycling and upcycling packaging may infringe trademark rights, especially in cases not protected by the first-sale doctrine—the principle that a trademark owner’s rights over a particular mark-bearing product end once the owner first sells it. Furthermore, even refill packaging carries legal risk due to specific statutory prohibitions under Thai law. Compounding these challenges, the draft Sustainable Packaging Management Act will impose extended producer responsibility (EPR) obligations on manufacturers and brand owners, requiring them to manage packaging throughout its lifecycle. These overlapping legal frameworks could deter manufacturers from pursuing ESG-aligned business models unless businesses understand how to navigate both trademark and environmental requirements.

Under Thai law, this issue remains uncertain because the Trademark Act does not expressly codify the first sale doctrine, also known as the exhaustion of trademark rights. Generally, this doctrine provides that once a trademark owner has lawfully sold goods bearing its trademark, the owner’s right to control further resale of those particular goods is exhausted. The rationale is that the owner has already received commercial benefit from the first authorized sale; therefore, the purchaser should be free to resell or otherwise dispose of the goods.

Although the doctrine is not expressly codified in the Trademark Act, Thai courts have recognized it in relation to genuine goods and parallel imports, as seen in a Supreme Court Judgment No. 2817/2543 in which the court held that the parallel importation of genuine branded hair clippers did not constitute trademark infringement. However, Thai case law has not clearly addressed whether exhaustion applies to recycled, upcycled, repackaged, materially altered, or refilled products. Will packaging for these products also be protected by the first-sale doctrine? And how will these trademark considerations interact with the emerging regulatory framework under the draft Sustainable Packaging Management Act?

Exhaustion of Rights and Sustainable Packaging

The core activity of recycling and upcycling involves transforming original goods and products into new materials, but certain elements from the original product may remain after processing. Products used in recycling and upcycling are sourced from trademark owners and subsequently sold to manufacturers that operate using these methods, so the first sale doctrine applies here as long as the trademark owners have received fair remuneration from the original sales and the product buyers have the right to distribute the goods they have purchased as they wish.

The first sale doctrine was developed to protect trademark owners from unfair competition and to prevent marketplace confusion. However, secondary sales can sometimes harm trademark owners through lost revenue or brand confusion. Consequently, courts have established several exceptions to the doctrine. The key exceptions include:

• Inadequate repackaging: A product is no longer genuine if it has been inadequately repackaged. Sellers may offer repackaged goods only if they include clear notice of the repackaging and explicitly disclaim any affiliation or connection with the original trademark owner, to minimize confusion and brand dilution.
• False impressions: Resellers are not protected by the first sale doctrine if they use original marks to falsely imply that they are an authorized dealer or in misleading advertising.
• Material differences: Protection is lost if the resold goods differ materially from the trademark owner’s authorized products. An alteration is “material” if it influences a consumer’s purchasing decision, as this inevitably causes confusion about the source and quality of the goods. Examples of material differences include altering serial numbers, damaging physical packaging, and selling expired products.

Recycling vs. Upcycling: Trademark-Related Risk

In the case of recycling, the risk of infringing original trademarks is significantly lower, since recycling usually transforms and destroys the original form of goods, and the original materials are typically altered completely from their original form. The exceptions to the first sale doctrine—such as the material differences exception—will apply only if legitimate trademarks remain visible or apparent on the recycled products.

Upcycling is more legally complicated. Unlike recycling, upcycling often keeps the original product or packaging partly intact and repurposes it into something new—examples include transforming branded shopping bags into wallets, repurposing beverage cans into decorative items, or converting branded clothing into new apparel. In many cases, upcycled products still resemble the original product in recognizable ways, such as retaining the original logo, which may constitute a trademark. Because upcycling inherently alters a product from its original state, it poses a significant risk of confusing consumers about whether the original brand endorsed the modified product.

Thai courts have not yet clearly developed exceptions to exhaustion comparable to the material differences or inadequate repackaging exceptions found in certain other jurisdictions. However, because trademark law aims to prevent consumer confusion and protect goodwill, Thai courts may be reluctant to allow exhaustion as a defense where an upcycled product misleads consumers or damages the reputation of the mark. Courts would likely view upcycled products as nongenuine if the alteration impacted consumers’ purchasing decisions—for example, a new shirt created by combining parts of multiple luxury-brand clothing items might be considered materially altered even if the original garments were genuinely purchased, since the new shirt could potentially confuse consumers about the origin of the goods.

For businesses in Thailand, the safer approach is to remove, cover, or avoid displaying third-party trademarks on upcycled products. If a mark remains visible, businesses should avoid suggesting endorsement or affiliation, avoid prominent use of the third-party mark in marketing, and display clear disclaimers. However, even these disclaimers may not eliminate liability if the overall presentation still misleads consumers. Additionally, upcycling businesses should be prepared to comply with the EPR obligations under the draft Sustainable Packaging Management Act, which may require them to participate in waste collection and recycling programs for the materials they use.

Refill Packaging and Section 109/1 of Thailand’s Trademark Act

Refill systems encourage consumers to reuse durable containers and replenish them through refill pouches, cartridges, pods, or refill stations. Potential conflicts with trademark law arise when the packaging being refilled bears trademarks that do not belong to the refill station operator. Refilling one product into another party’s branded packaging may constitute trademark infringement if the practice is likely to confuse consumers as to the origin, quality, or approval of the goods, or to dilute the brand’s reputation.

Section 109/1 of Thailand’s Trademark Act prohibits the use of packaging or containers bearing someone else’s registered trademark in a manner that misleads the public into believing that the goods belong to the trademark owner. It remains unclear what conduct would constitute misleading the public into believing that refilled goods belong to the trademark owner, particularly in the absence of Supreme Court decisions interpreting this provision. At present, many companies limit refill packaging to lightweight pouches intended for consumers to refill products at home, thereby reducing the risk of direct claims.

Thailand’s Draft Sustainable Packaging Management Act

Beyond trademark considerations, businesses engaging in sustainable packaging practices must also monitor developments in Thailand’s environmental regulatory framework. The Thai government is currently advancing the draft Sustainable Packaging Management Act, which represents a significant shift toward EPR for packaging waste.

For businesses already navigating trademark concerns in recycling, upcycling, and refill packaging, the draft Sustainable Packaging Management Act introduces an additional layer of regulatory complexity. Companies may find themselves simultaneously addressing trademark compliance and EPR obligations when designing sustainable packaging strategies. For example, a refill station operator must consider not only section 109/1 of the Trademark Act regarding the use of third-party branded containers, but also potential new legal obligations under the draft Sustainable Packaging Management Act to ensure proper collection and recycling of packaging materials.

The draft act also presents opportunities for businesses. By encouraging the development of recycling infrastructure and creating economic incentives for sustainable packaging, the legislation could foster a more favorable environment for legitimate recycling and upcycling operations. Clear regulatory frameworks for packaging waste management may reduce ambiguity and provide businesses with greater certainty when implementing ESG-aligned practices.

Could Sustainability Override Trademark Rights?

A broader policy question is whether trademark law might be adapted to support sustainability, and how such adaptation would interact with environmental regulations like Thailand’s draft Sustainable Packaging Management Act. In 2025, the International Association for the Protection of Intellectual Property (AIPPI) passed a resolution calling for harmonized integration of first sale doctrine principles into member states’ laws, while also addressing the conflict between sustainability and the exhaustion of rights. The resolution states that sustainability considerations should not, in principle, override trademark rights. At the same time, it suggests that consumers should be free to request sustainability-related alterations to their own trademarked products, provided there is no further commercial exploitation.

For commercial activities involving altered trademarked products, such as upcycling, the resolution suggests that such practices may be acceptable only in exceptional circumstances. Relevant safeguards include ensuring that consumers are not misled, avoiding harm to the trademark’s image or reputation, and clearly informing consumers that the product has been altered. Although AIPPI resolutions are not binding under Thai law, this guidance, resulting from discussion among global IP practitioners including Thai representatives, may provide scope for future legal development.

Conclusion

Under Thai trademark law, recycling, upcycling, and refill packaging are not automatically prohibited, but their legality depends on how the original trademark is used in each case. Businesses must carefully navigate the first sale doctrine and its exceptions—particularly the material differences and inadequate repackaging exceptions—while also avoiding conduct that misleads consumers under Section 109/1 of the Thai Trademark Act. The forthcoming draft Sustainable Packaging Management Act will add a new dimension to this landscape by introducing EPR obligations that require producers and brand owners to take responsibility for packaging throughout its lifecycle, from production to disposal.

While the future may see barriers to ESG-aligned activities such as upcycling and recycling reduced through legislative reform in Thailand and other countries, businesses operating in these areas should remain cautious and pursue a coordinated approach to ensure compliance with both trademark law and evolving environmental regulations under Thai law.

This article was prepared with the assistance of Tilleke & Gibbins intern Phuripat Kaewklom.