Fashion Thrifting and the Intellectual Property Rights Landscape

INTRODUCTION:

Fashion is a concept that has been prevalent for ages and has time and again proven itself to be an ever-growing realm and an integral part of modern society. For as long as humans exist, the need for fashion persists. While back in the day, fashion might seem to be restricted to the fashion capital of the world, Paris, and a product of the West, varying forms of jurisdiction fashions have been prevalent throughout the world. Furthermore, with the widespread of technological advancements and know-how, fashion trends have never been more accessible.

The world is full of creative minds, which have come to play especially due to the increase in fashion and apparel industry demand. However, back in the pre-industrialization days, a majority of the people were dependent on homespun fabrics. The lower and middle classes often mended, reused and refurbished their clothes and other fabrics till they couldn’t find a possible way to use them another way, additionally, even when it came to the upper-class people, their consumption was quite limited and often mindful. The quality always overweighed the quantity.

As the fashion industry advanced with varying new tools such as the spinning jenny, sewing machines and sizing systems, the production of ready-to-wear clothes became a possibility and so the industry saw a boom in the mass-production of the same. The supply for fashion apparel became readily available and crashing down came the exorbitant prices that were once associated with them. The fabrics that were once repurposed to an extent that they weren’t recognisable, due to their low costs became extremely disposable, not only to the rich but also to those in relatively lower to them. Consumption patterns evolved and resulted in changes for society at large and for the manufacturers. Seeing an increase in consumption patterns, the manufacturers saw an opportunity to release different styles for different occasions or different “seasons” for clothing style and so came into the picture what we know today as the “fast-fashion” industry, where it was emphasised to keep up with the trends and “seasons”, and not on the longevity and safekeeping of the apparel.

Fast fashion has led to an immense increase in waste production as discarded apparel and fashion items have proliferated. To address these issues, various waste management systems were implemented all around the world to deal with this consumerist lifestyle that had now been adopted. In response to the ever-growing costs and especially the waste being generated by the industry, second-hand clothing stores came into existence. However, hygiene and sanitation were one of the main concerns of the people and these stores often were seen as an aid for those who needed clothing but couldn’t afford the same, rather than being a way for people to not generate as great of a waste. These second-hand clothing stores or thrift stores have been prevalent for a long time and have sought sustenance through immigrants who often took an interest in tailoring and consumption of the goods in question thus the thrift stores have been at a stable position in the society. Thrifting has become a trendy and responsible choice for individuals seeking fashion alternatives that align with their values. The reasons for the same are numerous; ranging from unethical practices of exploiting workers to extensive use of child labour, unsafe working conditions, the increasing textile waste and the ever-growing awareness about global warming, etc.

SUSTAINABLE FASHION AND UPCYCLING:

The fashion industry is indeed a major contributor to environmental problems such as climate change and has caused significant harm, making sustainability and responsible practices critical concerns. The fashion industry with its fast-fashion approach, has led to it being a major contributor of carbon emissions, wastewater, synthetic materials, and hazardous chemicals among other concerns. According to the United Nations, as of 2018, the fashion industry was responsible for around 10% of global emissions. Owing to these growing concerns, promoting sustainable growth in the fashion industry and reducing the adverse environmental effects of the same becomes extremely critical. One of the most popular alternatives to curb the issues at hand is that of upcycling.

Upcycling is the practice of enhancing an existing product by altering it in a manner that enhances its appeal to consumers. This approach not only extends the lifespan of existing products but also fosters sustainability and contributes to the development of a circular economy. Remarkably, while upcycling has been around for quite some time, the fashion industry has experienced a significant surge in upcycled fashion products, especially during the COVID-19 pandemic. As people had no option but to stay at home, people found a productive outlet by taking their existing fashion items and transforming them for resale purposes. There are two forms of upcycling. The first form is where products are broken down into individual components and converted into new products altogether, often these new products feature well-known logos. The second form of upcycling involves the transformation of the original items into something new by adding pieces to them in order to revamp or customise them.

UPCYCLING AND THE LEGAL LANDSCAPE:

While the world has become aware that there is a popular demand for sustainable fashion and upcycling is a major way for the same; a tough question is presented for brands: how can one be sustainable and promote upcycling while also protecting one’s brand value?

Upcycling brings various benefits to the table but no matter how much ever it may be environment-friendly, it also brings with itself a wide array of legal issues, particularly in the realm of IPR law. It is important to recognize that many upcycled products incorporate elements sourced from existing luxury items, which are typically safeguarded by various forms of IP rights, including trademarks, copyrights, design rights, and other legal protections.

Infringement is a likely scenario in the case of upcycling as the upcycled products might pose a likelihood of confusion among consumers. The "Principle of Exhaustion" or "Doctrine of Exhaustion," also known as the "First Sale Doctrine," occupies a central position in trademark law. This legal concept stipulates that once a product bearing a registered trademark is duly purchased, the owner of that trademark cannot impede subsequent actions such as resale, lending, or gifting of that product to others. When a genuine product bearing a trademark is introduced to the commercial market, the protection of that trademark is considered to be exhausted. Consequently, subsequent transactions involving the products that are conducted without the explicit permission of the trademark owner are typically not considered trademark infringements.

However, it is crucial to recognize that the Doctrine of Exhaustion may not always apply to the practice of upcycling products that contain logos and other trademarks. The essential exception to this rule is when the product's fundamental qualities or characteristics have been substantially altered. In such instances, the courts have determined that trademark rights persist if there are "material differences" between the original products and the resold or upcycled items.

In practical terms, this indicates that repurposed products containing materials adorned with logos and other trademarks may indeed be subject to trademark infringement claims if they can be distinguished from the original products on a substantial level. Even if the original product is employed with certain enhancements, such as the addition of fringes to a handbag, the repurposed product may still be viewed as materially distinct from the original, which may raise trademark infringement concerns. It is essential to emphasize that this is a legally complex area, and that the determination of infringement frequently depends on the particular factual and contextual details of each individual case.

In the case of Chanel Inc. v. Shiver + Duke LLC, Chanel alleged that Shiver + Duke was selling jewellery which featured Chanel’s iconic “C” logo and claimed that Shiver + Duke had abused the Chanel trademark.

In response to Chanel, Shiver+ Duke, among other things, stated that they have the protection of the First Sale Doctrine or the Doctrine of Exhaustion and ultimately, the companies reached a settlement.

In the case of Louis Vuitton Malletier S.A.S. v. Sandra Ling Designs, Inc., Sandra Ling Designs used pre-owned Louis Vuitton goods to create new items and also in other items added beading and stones to the goods which showcased the Louis Vuitton trademarks. Louis Vuitton argued that the modified items no longer met their high standards for aesthetics and quality. As a result, they contended that these items should no longer be considered genuine Louis Vuitton products. The first sale doctrine doesn't protect new and substantially altered goods.

Upcycled goods by Sandra Ling Designs

The court didn't decide if Sandra Ling Designs’ actions were counterfeiting because they made a legal offer, which Louis Vuitton accepted. Even though they didn't admit wrongdoing or agree on damages, Sandra Ling Designs agreed to a permanent injunction and to pay $603,000 (Rs. 5 Crore, approx.)

While these are a few instances when courts discussed upcycling, it still requires many more debates to have a vital precedent.

CONCLUSION:

While there is no denying the fact that upcycling is a step in the right direction toward a more sustainable future, in line with society's increasing desire for environmental responsibility, it is important to understand that it also presents brand proprietors with significant business and legal challenges. Trademarks emerge as a powerful tool that brand proprietors can utilize to protect themselves against these concerns, including post-sale confusion, brand dilution, and sales diversion.

There are remedies and strategies available for brand owners or address the challenges presented by upcycling and the potential infringement of their branding rights. Brand owners can protect their intellectual property rights and maintain the integrity of their brands while contributing to a more sustainable future by understanding the legal environment, pursuing proactive measures, and collaborating with upcyclers when feasible. This equilibrium between originality, sustainability, and legal protection is essential for traversing the ever-changing fashion and intellectual property landscape.

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