Fashion Upcycling and Trademark Infringement – A Circular Economy/Freedom of the Arts Approach

Fashion upcycling offers unprecedented opportunities for the sustainable reuse of clothing: using second-hand garments as raw materials for new creations, upcyclers can transform used pieces of clothing into new fashion products that may become even more sought-after than the source material. The productive reuse of garment components in upcycling projects is socially desirable in the light of the overarching policy goal to achieve environmental sustainability. Fashion upcycling that adds new value to worn pieces of clothing can contribute to the reduction of fashion waste. The more individual fashion elements and garment components enjoy trademark protection, however, the more legal obstacles arise. Upcycling may trigger allegations of consumer confusion and unfair freeriding when fashion elements bearing third-party brand insignia become elements of the upcycled product. The exhaustion of trademark rights after the first sale does not necessarily offer a solution because the change and rearrangement of branded garment components may render the first sale doctrine inapplicable and give the trademark proprietor ammunition to oppose the resale. Therefore, the question arises whether other defences are available in trademark law to escape the verdict of infringement. Rightly understood, fashion upcycling constitutes an important, constitutionally protected form of free artistic expression. Upcyclers use second-hand fashion elements to convey the important message that production and consumption patterns in the fashion sector must change. Considering the overarching policy objective to ensure a circular economy, the use of fashion elements that bear third-party trademarks for this purpose can be qualified as a legitimate form of nominative or referential use. The reference to products of the original trademark owner is made for the socially valuable purpose of providing a vision of better, more sustainable production and consumption practices