Can trademarks make the repair clause brake suddenly? Trademarks, designs and right to repair in light of the Judgment of the CJEU AUDI v. GQ, C-334/22

Abstract

 It is common to include the right to repair as one of the elements comprised under the paradigm of the Circular Economy. In recent years, this paradigm has received a boost that affects many policies and, consequently, their specific EU governing legislations. Intellectual Property Rights are not an exception to that trend, although their relations with repair activities is historic and with complex contours. The recent reform of the EU design acquis, adopted in 2024, entailed the recognition of the so-called “repair clause”, not without efforts. However, this legislative achievement could be braked suddenly on the basis of an extensive and anti-competitive implementation of Trademark Law, a phenomenon which can be traced back in the CJEU case-law, but has especially gained traction after the recent delivery of its ruling in the case AUDI v. GQ. A critical review of such ruling, also based on the CJEU jurisprudence, will be offered, and, finally, it will be suggested that a regulatory response is necessary to avoid circumventing the repair clause.