Upcycling: Fashion’s New IP Infringement Frontier

Upcycling has become one of fashion’s most visible sustainability trends. By transforming discarded or pre-owned items into higher-value products, designers tap into consumer demand for circularity and creativity. But as recent litigation shows, upcycling can sit uneasily with intellectual property (IP) law.

For aspiring solicitors interested in IP, luxury brands, or sustainability regulation, this developing area offers a fascinating case study in how established legal principles are being tested by modern commercial practices.

At the heart of the legal debate lies the principle of exhaustion of rights (known in the US as the “first sale doctrine”). Once a product has been placed on the market by, or with the consent of, the IP rights holder, that rights holder generally cannot prevent its resale.

However, exhaustion does not automatically extend to products that have been modified or altered after sale. Upcycling, by its very nature, often involves precisely this type of alteration.

Under EU trade mark law, for example, a rights holder may oppose further commercialisation where there are “legitimate reasons” to do so — including where the condition of the goods has been changed. Similar tensions arise in copyright and design law.

In the US, luxury brands have increasingly turned to litigation. High-profile disputes have involved brands such as:

Cases have centred on jewellery made from branded buttons, reconstructed denim, and accessories created from deconstructed handbags. Most have settled, limiting judicial guidance, but they demonstrate brands’ willingness to test the boundaries of the first sale doctrine.

For aspiring solicitors, the key takeaway is that US courts tend to focus heavily on whether the modified product is likely to cause consumer confusion as to origin, sponsorship or approval.

Europe has begun producing more substantive case law.

In January 2024, the Swiss Federal Supreme Court addressed the customisation of Rolex watches. The Court distinguished between:

This distinction is highly relevant for advising clients operating in bespoke or “made-to-order” markets.

In April 2025, the Paris Court of First Instance ruled in a dispute involving denim jackets incorporating fragments of original Hermes scarves.

On copyright, the court relied on the reasoning of the Court of Justice of the European Union in the Art & Allposters case, holding that incorporation into a new product constituted a change of medium or form, preventing copyright exhaustion.

On trade marks, infringement was found both where the Hermès mark remained visible and where it had been removed. French law explicitly treats the removal of a trademark as a potentially infringing act, and the defendants could not prove an authorised first sale within the EEA.

The court also rejected arguments based on artistic freedom and environmental protection, finding that the activity was primarily commercial and free-riding on brand reputation.

For trainees, this case highlights the importance of:

The High Court of Singapore went further still in a recent case concerning accessories made from original Louis Vuitton goods. The court classified the products as involving the use of a counterfeit trademark, emphasising that they were not original products of the brand.

This approach reflects a broader trend in parts of Asia, including China and South Korea, where courts have tended to favour rights holders in disputes involving “reform” or deconstruction of branded leather goods.

Keeping original marks on upcycled goods is likely to infringe. Removing them may also be problematic in certain jurisdictions.

Following the reasoning of the CJEU in Arsenal, disclaimers at the point of sale may not prevent infringement, particularly given the concept of post-sale confusion.

Recent European decisions suggest that copyright claims may become a powerful additional tool for brand owners.

Luxury brands must balance strict enforcement with reputational considerations in a sustainability-driven market.

Upcoming EU sustainability initiatives, including the Green Deal, the Circular Economy Action Plan and the Ecodesign Regulation’s ban on destroying unsold consumer goods, may encourage authorised upcycling models. Brands may increasingly explore licensing structures, controlled partnerships, and digital product passports to retain control over modifications.

Upcycling disputes sit at the intersection of:

They demonstrate how established legal doctrines evolve in response to new business models. For those considering careers in IP, luxury brand advisory, or ESG-related practice, this is a rapidly developing and commercially significant area.

As fashion pushes toward circularity, the legal question remains unresolved: how far can creativity and sustainability go before they infringe?

The answer, increasingly, will depend on careful legal structuring, and the next generation of solicitors will play a central role in shaping that balance.

Definition:
A legal doctrine providing that once a product protected by intellectual property rights (such as a trademark, copyright, or patent) has been placed on the market by the rights holder, or with their consent, the rights holder cannot control its further resale within that jurisdiction.

In simpler terms:
Once you buy an authentic product, you can usually resell it, but you can’t materially alter it and sell it in a way that infringes the brand owner’s rights.

Why it matters:
In upcycling cases, the key legal issue is whether modifying a branded product (for example, turning a designer scarf into part of a jacket) goes beyond simple resale and therefore falls outside the protection of exhaustion.

Thank you for reading 😃