Upcycling in Fashion: Navigating Trademark Concerns and the Need for Clearer Guidelines

A concise exploration of upcycling in fashion – an innovative yet potentially infringing practice. The post examines the importance of upcycling in a throwaway culture with its environmental impact. It also considers legal protections for luxury brands and the tension between safeguarding those rights and fostering innovation for smaller creators.

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The fashion industry has become synonymous with convenience and instant gratification. However, this convenience comes at a heavy price, especially in terms of waste. Fashion waste is a major global concern, driven by overproduction, overconsumption, and constant disposal of garments. 

The Department of Commerce defines nondurable goods as products with a lifetime of less than three years, but in reality, their lifespans are often much shorter. Clothing and footwear make up a large part of this category. In today’s throwaway culture, it has become commonplace for people to wear an item of clothing only a few times, or even just once, before discarding it.  

This shift in consumer culture poses serious environmental risks with far-reaching global consequences. In 2017, the Environmental Protection Agency reported that 11.2 million tons of textile waste in the US alone were sent to landfills. Over the past 15 years, fashion production has doubled, yet 73% of clothing ends up in landfills, and only 12% is recycled – less than 1% of it is repurposed to create new garments. 

Upcycling in fashion offers a potential solution to this issue. Upcycling refers to the process of creating something new by using recycled or repurposed materials. There are two main kinds of upcycling practices. Most commonly, original products are disassembled to reuse their individual components to create items. The second technique involves reinterpreting original products by incorporating new elements. This process allows for the transformation of an item that might have been discarded into something fresh and innovative. In recent years, this trend has gained traction, fueled by the rise of DIY culture and the widespread influence of the internet. 

While this trend has fostered creativity and offers environmental benefits, it also raises concerns regarding trademark infringement and fair competition. Infringement of IP rights is most likely to occur when upcycled products incorporate materials with logos or other protected trademarks. To establish infringement, a trademark owner must show that the infringing party uses the same or similar trademark in commerce without the owner’s consent and that the infringing use of the mark could lead to a likelihood of consumer confusion. Most commonly, consumers might mistakenly believe that the product was created by a luxury brand. 

There have been numerous lawsuits where luxury brands have accused smaller companies of infringement, with Chanel in particular pursuing several high-profile cases regarding refashioned designer items. One of the most notable of these cases arose when Travis Kelce, tight end for the Kansas City Chiefs and social media personality, wore a bold silk shirt featuring two large flamingos and a prominent Chanel logo trim at the bottom to a red-carpet event. 

The shirt was created by Logan Horne, a stylist whose brand J. Logan Home specializes in refashioning luxury accessories. In February of 2024, Chanel’s legal team sent Horne a letter of cease-and-desist, demanding that he stop selling products featuring its logo. Horne stated that he cannot afford to battle Chanel, which has threatened to pursue statutory damages of $2 million per infringement. In order to avoid a legal battle that could potentially bankrupt him, Horne plans to pivot his brand while continuing to seek innovative ways to address the industry’s issues with waste and overproduction. 

While it is crucial to protect the creations of luxury brands, this focus often overshadows the rights and opportunities of smaller commercial creators. Smaller-scale upcycling attracts far less attention, as smaller creators cannot afford to fight costly legal battles that luxury brands can easily afford to pursue. This discrepancy arguably hinders the survival and creativity of independent designers. Instead of encouraging innovation and artistic expression, the legal emphasis on protecting luxury trademarks can unintentionally suppress the innovation and environmental consciousness that the fashion industry is desperate for. 

This complex dilemma urges us to reflect on what is most important to our culture regarding fashion practices and who we choose to legally protect in the process. It challenges us to consider whether it is truly the large luxury brands with vast financial resources that truly require legal protection. It also raises the question of whether the environmental impact of our fashion culture and practices should command our full attention and legal resources. Additionally, it asks if we should prioritize supporting smaller creators to drive innovation and challenge the status quo. To address these questions and begin finding solutions, we must recognize that this is a grey area in law, one that will inevitably need to evolve to encompass the interests of all parties involved. Ideally, case law surrounding upcycling and trademark infringement will develop over time to address these questions and concerns, ultimately establishing clearer guidelines for upcycling materials and designs that protect all parties involved.