Upcycling From A Trademark And Marketing Law Perspective

• Published date: 21 December 2023
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Trademark, Advertising, Marketing & Branding
• Law Firm: Kromann Reumert
• Author: Kolja Staunstrup, Tugba Karacan and Stina Toftager Rasmussen

Upcycling has become a widespread trend, and while upcycling may have environmental benefits, it raises a number of legal issues. In this article, we take a closer look at the trademark and marketing law challenges that companies should consider in their upcycling initiatives.

What is upcycling?

Upcycling can broadly be described as a process converting second-hand products into new products without breaking down the materials. Upcycling can have significant environmental benefits, as it reduces not only waste but also the need for new raw materials. The upcycling process often adds new and, in most cases, higher value to products that would otherwise be categorised as waste products or trash. Especially the fashion industry, which is referred to as one of the biggest climate villains, has embraced upcycling, for example by turning buttons on discontinued clothing into earrings and old bags into shoes.

In 2020, the issue of upcycling arose in a case before the Danish Maritime and Commercial High Court (BS-43965/2018-SHR of 6 January 2020) between the company Rich-Ycled Scandinavia IVS (Rich-Ycled) and Louis Vuitton Malletier SAS (Louis Vuitton). Rich-Ycled was a company specialising in the recycling of materials from the fashion industry to produce shoes. Rich-Ycled had marketed and sold shoes made from Louis Vuitton canvas and t-shirts bearing, among other things, Louis Vuitton's trade mark with the quote "I am not". During the case, Rich-Ycled submitted that they used canvas originating from old Louis Vuitton products to produce the shoes. However, an examination of the disputed shoes revealed that the Louis Vuitton products used by Rich-Ycled were not original. Since the products were not original, the Maritime and Commercial High Court did not decide on the question of upcycling, including whether or not Rich-Ycled was entitled to upcycle original Louis Vuitton products.

Trade mark law perspectives

A trade mark is a simple sign in itself, and when incorporated in and linked to a specific company or specific products, the value of the trade mark can be enormous. One of the most important functions of a trade mark is to provide buyers of a product with information about its commercial origin - referred to as the function of indicating origin. It is therefore important for the owner of a trade mark to enable buyers to distinguish the trade mark owner's products from other products owned by other companies.

Both the Danish Trade Marks Act and the EU...