Anyone who buys a set of LEGO bricks, may resell that same set. The trademark right is then exhausted. But may a company buy used sets, assemble them into new sets and sell them as a second-hand product? The trademark owner can prohibit this if the condition of the goods has changed. For example, if the quality has deteriorated significantly, or if the product has been altered in some way. Then that change has been made beyond the control of the trademark owner. If there is then something wrong with such a product, it can harm the trademark owner.

This was the stake in a lawsuit between LEGO and someone who collected and assembled sets, e.g. a Dutch Railways locomotive with wagon, for example, bearing the Dutch Railways logo. 

Also metal bearings had been added to make the wheels spin better: 

That's where it breaks down for this reseller: these additions are detrimental to the quality assurance function of the mark. Never mind that LEGO does facilitate the custom-made printing of bricks itself. That does not mean that LEGO should allow a third party to do the same (beyond LEGO's control). The state of the product has changed, and LEGO can oppose the sale of it. 

It would have been really interesting if this reseller had not modified the bricks, but had only assembled them into a construction set that is not offered by LEGO itself. Would a claim of exhaustion then still stand? This is the order of the day with the practice of upcycling: reusing products or parts thereof to make new, high-quality products. Desirable from a sustainability standpoint, but the brand owner may have an interest in counteracting it. In the coming years we will be seeing more such disputes in which an appropriate balance between these interests will be found. At the ECTA Retreat at BOIP's office this spring, I discussed some of the problems and possible solutions. The coming years we will see what legal route will be taken in cases about upcycling.

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