Fashion Upcycling and the Human Right to a Healthy Environment: Trademark Protection Thwarting Sustainable Reuse? download
Fashion, healthy environment, Human rights, trade mark
Keyword: Fashion
Fashion Upcycling: The Problem of Overlapping Intellectual Property Rights and How to Solve it external link
Abstract
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. However, the more individual fashion elements are protected by intellectual property (IP) rights, the more legal obstacles arise. Fashion items may enjoy cumulative copyright, industrial design and trademark protection. Accordingly, infringement claims may be based on multiple IP rights and upcyclers may have to rebut infringement arguments stemming from different IP domains.
Seeking to pave the way for large-scale upcycling initiatives in the circular economy, it is crucial against this background to develop robust defences that are applicable across different protection regimes. To achieve this goal, the rules governing protection overlaps should be recalibrated. As a corollary of the cumulation of different IP rights, rightsholders should be obliged to keep intact the checks and balances of each individual protection regime involved. Following this approach, only the smallest common denominator of exclusive rights – the scope of protection after subtraction of all forms of permissible unauthorized use – remains available. If upcycling is permissible under an exception to exclusive rights or the exhaustion rule in one protection regime, the rightsholder is obliged to ensure that overlapping rights in other IP domains do not stifle this breathing space. Practically speaking, this leads to the universal applicability of a defence for upcycling across the different domains of IP law.
Fashion, Intellectual property
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Bibtex
Fashion Waste, Trade Mark Protection, and the Circular Economy: Towards a New Public Domain for Sustainable Reuse download
Abstract
Traditionally, the debate on trade mark law and the public domain has focused on the strategic use of trade mark law to artificially prolong exclusive rights after the expiry of protection in intellectual property systems with a limited term, and the grant of trade mark rights covering public domain material, such as cultural signs and traditional cultural expressions. While the glamorous world of fashion offers examples of protection term extension and public domain re-appropriation cases, the following analysis focuses on fashion reuse in the circular economy as a phenomenon that can be placed in a public domain context. Considering the urgent need for measures to enhance legal certainty for sustainable fashion reuse in the circular economy, the question arises whether the time has come to discuss a limitation of trade mark rights and a corresponding broadening of the public domain. More concretely, it seems tempting to establish a new public domain by giving second-hand and unsold fashion items the status of freely available resources for sustainable upcycling and reuse in the circular economy—even if these fashion items bear protected third-party brand insignia. Exploring options for the practical implementation of this new public domain space, the analysis will yield the insight that the termination of trade mark rights is beyond reach. Alternatively, however, lawmakers and judges could consider introducing a robust principle of free reuse that shields initiatives leading to the sustainable reuse of trade-marked fashion items effectively against allegations of trade mark infringement.
Fashion, Freedom of expression, Intellectual property, public domain, trade mark
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Fashion Upcycling as Protected Free Speech in Trademark Law external link
Abstract
Fashion upcycling offers unprecedented opportunities for the sustainable reuse of clothing. Using second-hand garments as raw material for new creations, upcyclers transform used pieces of clothing into new fashion products that may become even more sought-after than the original source material. The more fashion elements enjoy trademark protection; however, the more legal obstacles arise. Fashion upcycling may trigger allegations of consumer confusion, brand dilution, and unfair freeriding. As the Introduction will explain, the exhaustion of trademark rights after the first sale does not necessarily dispel concerns about trademark infringement. The rearrangement of branded garment components in the upcycling process may render the first sale doctrine inapplicable and give the trademark proprietor ammunition to oppose the resale. Against this background, the analysis explores other strategies to assure fashion upcyclers that, as long as they do not specifically aim at misleading consumers or damaging and exploiting protected brand insignia, they can rework trademarked fashion items without risking the verdict of infringement. To lay groundwork for this approach, Section I focuses on trademark theory that stresses the need to develop a specific set of rules capable of shielding the expressive use of trademarks against allegations of trademark infringement. In the light of cultural sciences, Section II demonstrates that fashion upcycling constitutes a specific form of artistic speech – and a specific form of expressive trademark use – that has particular societal value in the current environmental crisis. It offers a vision of alternative, more sustainable production and consumption patterns. Therefore, fashion upcycling should benefit from breathing space for free speech in trademark law. Taking this insight as a starting point, Section III discusses two avenues for supporting fashion upcycling in trademark contexts: first, the option of adopting a strict test of use as a trademark that could immunize sustainable fashion reuse from allegations of trademark infringement on the ground that consumers will understand the specific reuse context and perceive third-party trademarks on circular economy products as mere decorative elements. Second, the option of strengthening defenses, in particular the referential use defense, by developing labelling guidelines that allow upcyclers to ensure compliance with the requirement of honest practices in industrial or commercial matters. The Conclusion offers concluding remarks. The EU trademark system – the Trade Mark Regulation (“EUTMR”) and the Trade Mark Directive (“TMD”) – will serve as a reference point for the discussion.
Fashion, Freedom of Speech, Trademark law
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Bibtex
Developing Defences for Fashion Upcycling in EU Trademark Law
Abstract
Trademarked fashion items pose a particular obstacle to reuse projects in the circular economy. By granting broad exclusive rights, EU trademark law exposes sustainable reuse practices, such as upcycling, to allegations of infringement ranging from (post-sale) confusion to blurring, tarnishment and unfair freeriding. Against that background, this analysis explores strategies to assure fashion re-users that, as long as they do not specifically aim to mislead consumers or damage and exploit protected brand insignia, they can rework trademarked fashion items without risking the verdict of infringement. Two options for enhancing legal certainty will be explored: the first consists in adopting a strict test for ‘use as a trademark’ that could immunise sustainable fashion reuse against allegations of trademark infringement on the ground that consumers understand the specific reuse context and perceive third-party trademarks on circular economy products as mere decorative elements. The second option involves strengthening defences, in particular the referential use defence, by developing labelling guidelines that allow fashion re-users to ensure compliance with the requirement of honest practices in industrial or commercial matters.
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Fashion, Trademark law