Fashion Upcycling from a trademark law perspective

Introduction:

The world of fashion is inherently dynamic. Due to the wide variety of products in this field, the world of fashion is highly susceptible to change. This is due to the fundamental requirement of companies to respond to new trends. The incorporation of "sustainability" into fashion was well received. This is due to growing environmental awareness around human consumption and its negative impact on the planet. Eco-friendly alternatives to previously established fashion trends have become a buzzword in the fashion world. This obviously leads to the use of upcycling in fashion. However, the above-mentioned upcycling process in fashion introduces considerable complexity from a trademark law perspective. This piece focuses on outlining these complexities as well as endeavours to propose solutions to such complexities.

What is fashion upcycling?

The concept of fashion upcycling has been around for a while, however, in the recent past; this concept is said to have gained momentum from the increased need of sustainability in the design sector. The need for a sustainable future only increases by the day. Factors like animal extinction and global warming contribute to the need of sustainability; particularly in the design sphere.

The term ‘upcycling’ is defined as “the transformation of discarded or leftover materials into new and unique items of value.” However, it is not to be confused with the likes of recycling. Whereas recycling can be understood as the process of completely breaking down of the ingredients, into raw materials, upcycling can be termed as the process of making a new product for either the maintenance of product’s standard or to improve the said product’s standard.

The significance of upcycling in the design world is scaled up by the un-sustainable nature of human consumptions and the adverse environmental effects as s result of such said consumption. The concept of upcycling intends to make a deciding shift in the consumption pattern of human use and ultimately is said to contribute to a circular economy. Furthermore, the practise of upcycling can be honed by anyone who would have the imaginations as well as interest to do so. The simplicity of upcycling makes it a favourable use as the criterion for upcycling is limited to creativity and awareness.

The usual materials used for the process of upcycling in fashion is wood, textiles & threads, plastic, metals, etc. The application of upcycling in fashion is particularly of relevance as there as there is a premium attached to goods of a unique/exclusive character. Some common examples of upcycling in fashion are, upcycling an old pair of denims into a stylish new tote bag, creating patchwork jackets by using different materials from discarded garments, etc.

Definition of trademark law:

Trademarks are a legal framework that is used as a protective tool against infringement of distinctive names. Phrases, logos, and symbols. It strives to avoid confusion between business owners by determining the uniqueness of a mark and delving deep into the origin of goods and services.

“A trademark is a recognizable sign, design, or expression that distinguishes products or services from those of other entities.” Shifting our focus to trademark law, it is said to facilitate legal protection to trademark owners by guaranteeing them exclusive rights to market their mark in trade.

While not mandatory from a legal perspective, the registration of trademarks tends to reap additional benefits for the initiator of such registration. A trademark-related infringement is said to occur when a party with intention uses a mark that is decisively similar to that of a priorly registered trademark. This may invoke legal remedies like that of damages, injunctions, or even criminal liabilities.

Scope of fashion upscaling in trademark law:

The landscape of the fashion-related world is dynamic in nature. Due to the product line in this field, the fashion world is very susceptible to change. This can be attributed to the fields ground-zero requirement of keeping up with new trends. There has been a positive reception to the integration of ‘sustainability’ in fashion. This is because of the extended environmental awareness around human consumption and its adverse impacts on planet earth.

Eco-friendly alternatives to previously established fashion trends have become the buzzword in fashion. This gives rise to the overt use of upcycling in fashion. However, the said process of upcycling in fashion promulgates significant complexities with reference to trademark laws.

The problem revolves around items of fashion that have a registered trademark. In such cases, the process of upcycling poses trademark-law related complexities. The problem is said to be three-fold; at the outset, there is a looming fear of post-sale confusion. This enhanced when the products that go through the process of upcycling use already existing trademarks. The re-worked items can easily be confused for previously established official brand-products. Additionally, upcycling could be the primary reason for the tarnishment of a well-established brand’s reputation if the upcycled product fails to align with the brand’s goodwill. As a direct result, the consumer’s expectation would not be met. This destroys the brand’s earned goodwill. In the context of fashion, a brand’s hard-earned exclusivity may be ruined by upcycling. Finally, there exists the persistent threat of inferior products and goods gaining an unfair advantage by using recognizable logo’s and benefiting unfairly from the existing good brand-perception.

The solution to the aforesaid, is two-fold, primarily, brands are advised to make use of a trademark test. The said trademark test would work to redefine the concept of using a mark that is used in commerce. This test would encompass specific context as to the reuse of previously registered trademarks. In cases of the reusing of trademarks in upcycled products for mere decorative elements, the requirement could then be relaxed and the using of certain trademarks may be allowed. To further this, there could be an aimed shift in the consumer’s perception. Infringement claims may be avoided in its entirety if the recognition of upcycled product does not in any way, shape or form affect the brand’s exclusive rights to interpretation of mark.

The second line of solute can be achieved from using referential use defence and ensuring consumer education. While referential use allows the usage of marks exclusively for referential purposes, brands can also actively engage in holding workshops, webinars, etc for consumers. The topic line for such workshops would be decoding upcycling with special emphasis on upcycling in fashion.

Conclusion:

The process of upcycling in fashion is the forerunner in fashion’s race towards optimum sustainability. The circular economy can be maintained by infusing trademark protection and some creativity. However, it is pertinent to maintain some amount of balance between said protection and creativity. Upon ideal implementation, discarded fashion would be able to find new life, signifying perhaps the most important towards sustainability in fashion. From a legal standpoint however, there needs to be constant collaboration and cooperation between brand owners, designers, and the end-consumers.