Upcycling and intellectual property: foes or friends?
Upcycling, a growing trend particularly prominent in the fashion industry, involves transforming second-hand products into new, higher-value items without breaking down the materials. Despite its environmental benefits, this practice triggers various legal concerns. It intersects with trademark and copyrightlaws, shaping complex challenges that companies embarking on upcycling initiatives need to navigate.
Trademark-related perspective: The use of trademarks in upcycled products raises critical questions about the exhaustion of trademark rights. While the Court of Justice of the European Union (CJEU) has addressed exhaustion rules in the context of second-hand/recycled goods, the principles for upcycling cases remain largely unestablished.
However, principles outlined in CJEU cases, such as C-197/21 (SodaStream), provide a basis for understanding potential legitimate reasons for trademark proprietors to oppose the use of their marks on upcycled products. Factors like reputational damage or creating a false impression of affiliation with the trademark owner could influence the legal assessment.
Said differently, modifications to the original product can impede the exhaustion of trademark rights. Attempts to remove trademarks or include disclaimers might not always circumvent these legal barriers, especially in cases where the impression of a commercial connection still persists.
A recent case in Denmark between Rich-Ycled and Louis Vuitton underscores the importance of a global assessment in determining whether the use of trademarks on upcycled products implies a commercial connection. In that case, even though the text "I am not" was used with Louis Vuitton's trademark, the court ruled against its use due to the broader context and consumers' perception of the product's affiliation.
Copyright-related perspective: A similar situation arises concerning copyright laws, where the creation of new, upcycled products might involve a portion of the original work or design. Determining whether this constitutes a breach of copyright or the birth of a new, non-infringing creation remains a complex issue.
Conclusion: While upcycling fosters creativity, innovation, and sustainability in various industries, it faces legal intricacies related to intellectual property rights. Brand owners might face a dilemma in choosing between enforcing their rights and potentially engaging in a public relations crisis due to the positive perception of upcycling. As the legal landscape around upcycling remains relatively uncharted, a careful and informed approach is imperative for companies embracing this eco-conscious practice.
