Abstract:
The idea of circularity and sustainability is leading a transformative shift across various sectors, including the fashion sector. Sustainable fashion is reshaping the ethics behind production, consumption and disposal of fashion apparel. However, sustainable fashion practices, especially upcycled fashion, are surrounded by complex legal issues under intellectual property (IP) rights and are often questioned for their potential to cause infringement of IP. In order to proceed with fashion circularity, sustainable fashion practices need to be reconciled with the existing IP law framework.
By analysing sustainable fashion, notably upcycled fashion within the IP law framework, this research proposes to address the key issues of infringement surrounding sustainable fashion. It explores the idea of devising IP strategies to incentivize fashion brands to create sustainable fashion. In this regard, the research proposes to extend the scope of existing IP infringement exceptions, including transformative use under copyright’s fair use, the first sale (exhaustion) principle in trademark law, and the right to repair in the automobile sector, to sustainable fashion practices, in order to effect changes across the fashion sector supply chain. A nuanced distinction is also drawn between trademark infringement, which typically involves an unauthorized use of trademarked goods with the intent to cause consumer confusion, and upcycled fashion as a sustainable fashion practice, which is rooted in the idea of sufficiently transforming the original garment in order to prolong its lifecycle. This research aims to recommend policy and business reforms to mitigate the impacts ofthe fast-fashion industry on the environment and align the IP jurisprudence with sustainability imperatives.
Keywords: Circular Economy, Sustainable Fashion, Upcycled Fashion, Intellectual Property, IP Infringement, Transformative Use, Exhaustion Doctrine, Right to Repair
1. Introduction
Overproduction and overconsumption are widely recognized as major threats to environmental sustainability.[1] The textile and apparel industries are known to inflict adverse environmental impacts, spread across several stages in the supply chain, from using excessive non-renewable energy sources for weaving, dyeing, and finishing processes in textile manufacturing to the release of textile waste during the garment production process and emissions during the shipping of finished products globally.[2]
Fast fashion has recently been identified as an industry characterized by unsustainable overproduction and overconsumption. Fast fashion may be defined as readily available, inexpensive, factory-made products, which generally include garments and clothing.[3] They establish efficient supply chains and assembly lines across several countries to lower the investment costs. It is this practice in the fast fashion industry that has caused irrevocable and irreversible damage to environmental resources.[4] It is based on a buyer-driven distribution channel that responds to consumer demands for the latest fashion trends within shorter lead times.[5] Since it relies upon a linear economy model of take, make and dispose, it tends to invest in manufacturing considerably inferior quality textile fabric.[6]
Zara, H&M, Uniqlo, Gap, Forever21, Shein, and Temu are infamously known for converting haute couture into ready-to-wear fashion, which is both accessible and affordable. In a study by Stella Claxton of Nottingham Trent University’s Clothing Sustainability Research Group, falling prices, social media marketing, and the convenience of online shopping have led shoppers to buy twice as many items of clothing as they did a decade ago.[7] The rapid growth of fast fashion is seen as a threat to sustainable lifestyles as it promotes fragile and short-lived trends.
Today, fast fashion is embroiled in two major issues. Firstly, mass production in the garment supply chain industry impacts the quality of the garments, fabric, and textiles used in production and the value of the finished products.[8] Though yielding an immense profit, it is the most significant reason for unused and unsold garments, causing huge amounts of waste, clogging the supply chain not only with environmental pollution butalso with financial losses too.[9] There are enormous quantities of produced garments that remain unsold and are often burned instead of being recycled or treated in any sustainable manner. For example, in the year 2017, H&M was accused of burning 12 tons of unsold clothing.[10] Secondly, high consumption of garments further leads to a reduction in the life cycle of the garment, consequently reaching landfills while remaining underutilized.[11] The fashion industry is considered to be the second largest polluter, producing up to 10% of the world’s CO2 emissions and contributing to 20% of the industrial water pollution due to textile treatment and other dyeing processes.[12] As per recent data published by the Ellen MacArthur Foundation [13], it is expected that the textile industry will emit 50% more carbon into the environment by 2030.[14] Fast fashion has reduced the average number of times a garment is worn by 36% in the last 15 years.[15] Globally, while only 12% of the garments produced get recycled and 1% is incinerated, the remaining 87% of the textile waste ends up in landfills.[16]
Several conventions based on building a sustainable environment have introduced the need to shift to a circular economy model [17] and adopt sustainable practices aimed at reducing the carbon footprint.[18] A step towards building a sustainable environment is replacing fast fashion with sustainable fashion. According to Kate Fletcher, sustainable fashion is based on the principle of usership (rather than ownership) and stretching the use of existing resources in order to appreciate them in greater detail.[19] Sustainable fashion infuses the idea of circularity in the fashion industry by aligning fashion apparel production processes with increasing the use of recyclable techniques to reduce unwarranted consumption and reusing or repairing existing fashion goods. According to Henninger, sustainability in fashion has two stages. The first stage, sourcing and production, includes using durable, reusable, and recyclable materials to make products. The second stage, traceability and transparency, ensures that consumers understand the sustainable supply chain behind those products.[20]
Sustainable fashion includes slow fashion,[21] which could take various forms like recycling,[22] upcycling,[23] thrifting,[24] and swapping.[25] Several independent small and medium-sized enterprises have begun adopting slow fashion models to align with the objectives of a circular economy.[26] Among these, fashion upcycling, where existing garments are modified or repurposed to extend their lifecycle, has raised significant concerns from intellectual property (IP) owners. This is largely due to the exclusive rights granted under IP law to those who create original works or develop distinctive signs. However, it is important to clarify that while IP confers broad rights over reproduction, distribution, and commercial use, these rights are not absolute. Once a fashion item has been lawfully sold, doctrines such as the first sale or exhaustion limit the IP owner’s control over its downstream resale or use, provided there is no misrepresentation or confusion as to origin.[27]
Despite these legal limitations, some brand owners have taken action against upcyclers, particularly where they believe that their trademarks are being used in misleading or unauthorized ways. For instance, in Chanel, Inc. v. What Goes Around Comes Around, LLC, the luxury brand Chanel sued a reseller for allegedly modifying and marketing vintage items in a way that created a false impression of Chanel’s involvement.[28] Similarly, brands like Louis Vuitton have raised objections to upcycled goods that incorporated elements of their design or logos without consent.[29] While these reactions are not uniform across the industry, they reflect a common concern among certain IP owners when upcycled goods may affect brand integrity or consumer perception.
Nevertheless, the exclusive rights under IP cannot serve as a justification for actions that aggravate environmental pollution. At present, we are witnessing a growing awareness of the environmental harms caused by fast fashion on one side, and rising tensions surrounding IP enforcement in sustainable fashion practices on the other. The legality of sustainable fashion, particularly upcycling and resale, remains underexplored in the context of IP infringement or unauthorized use. It is therefore essential to examine whether certain sustainable fashion practices amount to trademark or other IP violations, and if so, is the case, whether the limitations and exceptions in IP law, such as the first sale exhaustion doctrine, transformative fair use, or right to repair, can be interpreted or extended to support circular fashion models and broader environmental objectives.
With the above approach, Section 2 introduces the debate between IP for fashion (how several aspects under fashion may be protected by IP) and IP for sustainable fashion (how IP can be used to promote the objectives of sustainable fashion). In Section 3, the authors propose a harmonious synergy between sustainable fashion and IP while articulating the need to consider sustainable fashion practices as non-infringing to IP, and justify adopting sustainable fashion in the long run. The paper further proposes extending the scope of existing IP limitations, such as the transformative use concept from copyright’s fair use doctrine, the first sale (exhaustion) principle in trademark law, and the right to repair, to cover sustainable fashion practices. This paper seeks to distinguish between trademark infringement per se, which involves the direct unauthorized use of trademarked goods (or marks) in commerce, versus the upcycling of trademarked fashion goods to extend their lifecycle. Finally, Section 4 recommends several business model reforms to incentivise the use of IP by fashion houses and brands engaged in sustainable fashion. This may help resolve the questions of infringement against sustainable fashion under IP.
2. IP for Fashion and Sustainable Fashion by IP: Analysing the role of IP in promoting Sustainable Fashion
Creativity and expression are universally accepted as the two very prominent driving forces behind the sustenance of the fashion industry. Interestingly, these words also imbibe within themselves the very structure of various forms of IP. The common thread which links both fashion and IP is the creative and novel expression of aesthetic and ornamental ideas applied to clothes, shoes, accessories, jewellery, etc. However, while IP grants exclusive rights to the creator for a considerable period of time, fashion is dynamic; it is new today and outdated tomorrow.[30]
IP is based on granting exclusive rights and monopolies for intellectual creations by way of copyrights, patents, trademarks, designs, and trade secrets. Fashion as an industry benefits the most from the creation, use, application, protection, and enforcement of various forms of IP. However, the emergence of the circular economy has come to question the effectiveness of IP in promoting the objectives of sustainable fashion. The protection of fashion by IP and the use of IP to foster the objectives of the fashion industry may be considered through the following three approaches that help determine the interface of IP with sustainable fashion: The first is making use of IP to foster innovation in fashion, and the protection of fashion goods under IP. This includes all aspects of the fashion industry, including labels, brands, garments, and couture designs and other ancillary products produced, manufactured, and launched by the fashion brands, which are a protectable subject matter under various forms of IP. The fashion industry is a diverse market comprising items ranging from apparel, garments, textiles, and other accessories.[31] Owing to the specific attributes of fashion, a direct form of protection is available under the protectability criteria for IP.
In reference to the fast fashion industries, trademarks are used to protect the name, logo, or mark of a particular brand, and the trade dress or visual appearance of the product- essentially facilitating brand loyalty and consumer identification with respect to the nature, quality, and range of different fashion product lines launched by the brands. Several aspects of a brand can also be trademarked, including specific textile patterns, such as Burberry,[32] and specific colours, like Louboutin.[33]
Industrial designs[34] or design patents[35] protect the aesthetic or ornamental aspects of the fashion garments, such as three-dimensional features of a shape of a product or two-dimensional textile prints, which add value to the overall visual elements, thereby infusing garments with an original, distinctive identity. They are usually the result of a combination of features, including lines, contours, colours, shapes, patterns, textures, and materials. There are also several jurisdictional variations which need to be studied and accounted for. For example, India[36] and Singapore[37] provide for the protection of articles of clothing, accessories, jewellery, and bags under their respective industrial design legislations. However, aspects of functionality that overshadow the design, or give rise to such design, and simultaneous protection under both copyright and industrial design law are excluded from any form of protection under all these jurisdictions. In contrast to this, China[38] andthe USA[39] follow the design patent and utility patent model, respectively. Under this, the overall shape of a product, or its part, pattern, colour, use, or any combination thereof, fit for industrial application and aesthetically appealing, is a patentable subject matter under design patents and techniques applied in the production of fashion products, and the production processes are registrable subject matters as utility patents.
In the case of fashion, copyrights are generally registered as complementary IP as they are obtained from two-dimensional artistic sketches or designs for garments. A copyright protects any original prints, graphic images, or photographs featured on textiles or garments infused with artistic craftsmanship. Also, fashion brands may make use of copyrights to protect their websites, lookbooks, brochures, sketchbooks, promotional materials or graphical user interface in their mobile applications.[40] In countries like India,[41] China,[42] Singapore,[43] Japan,[44] Indonesia,[45] and Vietnam,[46] copyright for artistic work provisions are used to protect works exhibiting artistic craftsmanship or works of art. This way, protection can be sought for design artworks, sketches, drawings for fashion apparel, etc., under artistic works and works of art applied to fabric, or garments under the category of works of artistic craftsmanship.
Generally, the most sought-after IP for the protection of fashion designs is a combination of protection under copyrights for artistic works and industrial designs for finished garments, which is a widely accepted phenomenon.[47] While the US grants designs and utility patents for fashion industry design embodiments[48], the EU has established the Community registered and unregistered design directives that secure the new and/or original fashion designs and applications.[49] India, on the other hand, permits protection under both copyright and industrial designs law, provided the former precedes the latter in order to retain protection subsequently under design law.[50]
The second approach is sustainable fashion by IP. This caters to using IP for protecting technologies and innovations based on creating sustainable fashion while simultaneously encouraging conscious consumerism. This recent debate has gained traction due to the excessive environmental waste produced and dumped by fast fashion brands. Textile recycling technologies,[51] 3D printing and digital fabrication,[52] eco-friendly dyes,[53] finishes, and digital market platforms[54] are sustainable fashion technologies that have been protected under IP.
The third approach is IP for sustainable fashion. Sustainable fashion practices like reusing and repairing a fashion good without seeking permission from the fashion houses that own fashion goods attract several claims of infringement under IP.
Hence, currently, IP is limited only to the extent of protecting technologies supporting and implementing sustainable fashion. Currently, IP laws do not explicitly incentivize fast fashion brands to reduce environmental impact, nor do they explicitly permit upcycling activities by third parties without permission, which are often viewed as infringements.
3. IP for Sustainable Fashion
As discussed above, sustainable fashion may take several forms, including recycling, upcycling, renting, thrifting and swapping. Recycling in fashion is considered a legitimate step towards a sustainable future and is generally not seen as an infringement of IP rights.[55] In the case of renting haute couture or luxury fashion garments, IP infringement typically does not arise when such rentals occur with the authorization of the IP owner. This often takes the form of franchise or licensing agreements with rental platforms or boutiques, under which the brand consents to the use of its trademark and may share in the revenue.[56] For instance, Rent the Runway has entered into official partnerships with several luxury designers, including Derek Lam and Proenza Schouler, thereby avoiding IP concerns through authorised collaboration.[57]
Further, swapping or thrifting, as sustainable fashion strategies, generally do not raise IP concerns when conducted transparently.[58] Participants in clothing swaps or resale platforms often disclose that the items are second-hand, used, and unaffiliated with the original brand, thereby reducing the likelihood of consumer confusion or misrepresentation.[59] Such disclaimers function similarly to the principles underlying the exhaustion doctrine in trademark law, which permits resale of trademarked goods after their first legitimate sale, provided that the resale does not suggest sponsorship or endorsement by the original brand.
However, it is fashion upcycling that is most often perceived as raising potential IP infringement issues, particularly under the trademark law. These concerns stem from the fact that upcyclers may alter or repurpose branded fashion items and resell them in the course of trade without obtaining permission or a license from the IP holder, thereby potentially invoking claims of unauthorised use, dilution, or misrepresentation.
Fashion upcycling in the textile industry refers to the process of improving, reworking, or modifying the existing product so as to make it more appealing to consumers and to extend the life-cycle of the garment.[60] Upcycling can take two forms: first, transforming original products into something new by adding details or material[61] (for example, using embellishments as patchwork, sewing crochet patterns, or deconstructing and reassembling the original garment)[62]; second, reusing still-intact components of otherwise discarded garments to create new items (such as repurposing an old kimono into a scarf).[63]
Intellectual property concerns, particularly under trademark law, may arise when the upcycled item bears an identifiable mark or logo and is offered for resale in the course of trade. In such cases, the legal issue does not hinge on the fact that the upcycler has added value or derived benefit from the repurposed product. Rather, trademark infringement depends on whether the upcycler’s use of the mark is unauthorized and whether it is likely to cause consumer confusion about the source, sponsorship, or endorsement of the upcycled item.[64] The concern is that consumers might mistakenly believe the upcycled product has been approved or produced by the original brand, particularly when its trademarks or distinctive features remain visible or are deliberately re-applied in a way that preserves brand recognition.
Further, if the upcycler reuses visible trademark elements, such as cutting out logos or brand patches from one item and affixing them to another upcycled garment, the risk of infringement increases. Such practices may be viewed as misleading, especially if the reconfigured item appears to be an original product or one officially sanctioned by the brand. In these cases, the upcycled item may give rise to claims of trademark infringement, passing off, or unfair trade practices due to the likelihood of consumer confusion or misrepresentation.[65]Fashion upcycling can also include cases of customization of original goods. Customization may occur in two distinct forms. The first is brand sanctioned personalization offered at the customer’s request, such as Nike’s “Nike By You”[66] service, which permits customers to alter colours or add initials to their sneakers within pre-approved parameters. This form of customization is authorized and therefore does not raise intellectual property concerns.
The second involves the brand or a third party offering pre-customised versions of trademarked goods as first-hand products, for example, hand-painted Adidas sneakers or modified luxury handbags sold by designers unaffiliated with the original brand. This form of customization may raise trademark infringement concerns if it gives the impression that the original brand approved, endorsed, or produced the modified goods.[67] Such practices may fall within the doctrine of material alteration, whereby changes to a trademarked product are considered legally significant if they impair the brand’s ability to guarantee the product’s quality or origin.[68] Courts in several jurisdictions have examined such scenarios under the lens of source confusion, sponsorship misrepresentation, or trademark dilution. For instance, in Chanel, Inc. v. What Goes Around Comes Around, LLC, Chanel alleged that the resale of vintage Chanel items, modified and marketed as authenticated luxury products, created a false impression of Chanel’s involvement or endorsement.[69]
Customizations that merely repair or restore a product, such as resoling shoes, mending seams, or replacing damaged linings, are typically not considered infringing. These acts fall within the bounds of the right to repair or exhaustion doctrines, which permit the lawful owner of a product to maintain its usability. However, when the reconstruction is so extensive that it alters the product’s original identity or functionality, and if the modified item is marketed in a way that could mislead consumers into believing it is an original or endorsed product, the action may constitute passing off or trademark infringement.[70]
The authors argue that fashion garments customized with the goal of extending their life cycle, particularly in pursuit of sustainability, should be evaluated more leniently under IP law, provided such modifications do not result in consumer deception. Although no explicit “sustainability exception” currently exists under the trademark law, parallels may be drawn with the right to repair and the transformative fair use doctrines, which similarly limit brand control over lawful goods once sold. The adoption of a sustainability-conscious framework in assessing trademark use could allow for a better balance between protecting IP rights and promoting environmental goals.
Furthermore, trademark infringement can occur if a trademark is “used” in certain improper ways: for example, through wrongful affixation of the registered trademark to goods, placing goods on the market under the registered trademark without authorisation, or unauthorised use of the registered trademark in advertising.[71] For instance, in India, trademark infringement under Section 29 requires an element of misrepresentation that leads to a likelihood of consumer confusion or association, potentially deceiving the consumer.[72]
In the European Union, confusion regarding the commercial origin of goods or services may arise where a company uses an identical or similar sign as a trade name, creating an association with the trademarked brand. Article 9 of the EU Trade Mark affirms that a trademark is infringed where its essential functions, such as indicating origin or guaranteeing quality, are compromised.[73] The United Kingdom, having retained much of EU trademark jurisprudence post-Brexit, applies a similar test: infringement arises only where the use adversely affects the trademark’s core functions. Thus, upcycled goods that do not confuse consumers or undermine these essential functions may fall outside the scope of infringement.[74]
In the United States, remedies for trademark infringement are primarily injunctive, though monetary damages may be awarded in cases involving wilful infringement or dilution. Courts have equitable discretion to deny injunctive relief where the accused use, such as upcycling, does not cause substantial consumer confusion or harm the value of the mark.[75] Trademark infringement arises only when there’s clear consumer confusion about the source of goods. In the context of fashion upcycling, where there is no intent to mislead consumers and where sufficient disclaimers or alterations are made, such practices may not meet the threshold of infringement under these frameworks.
It is imperative to distinguish between unauthorised use or dealing with a fashion garment (which is what trademark law guards against) and upcycled fashion as a sustainable practice to extend a product’s life. Fashion upcycling of garments may be defended by invoking the principle of exhaustion of rights underlying the first sale doctrine[76] in trademark law, as well as the concept of transformative fair use[77] under copyright’s fair use doctrine.[78] While the first sale doctrine holds that the IP holder’s rights in a particular item are exhausted after the item’s first legitimate sale (thus the owner of that item can resell or otherwise dispose of it), the principle of transformative use negates infringement claims when the new work adds new expression or meaning and is not a mere substitute for the original. By analogy, if an upcycled product is sufficiently transformed and neither misrepresents its source nor confuses consumers, one could argue that an infringement claim should not succeed. However, this doctrine may only be applied when the transformation does not misrepresent or confuse the consumers with respect to the source of origin of the original product.[79]
Further, fashion upcycling can also be synonymized with the right to repair as an exception to IP infringement. Right to repair,[80] as an extension of the exhaustion doctrine under IP and the ‘common law property’ doctrine, is often defended on the grounds of sustainability and the high costs associated with the manufacturers’ repair, and hence, it is non-infringing.[81] Under trademark law, offering independent repair services on branded goods might be seen as infringement if using the mark implies an official connection or if repaired goods are presented as new. Such an implied connection is likely if the independent repairer also manufactures or supplies replacement parts for the original product.[82] However, viewed through the lens of the first sale (exhaustion) doctrine, these repair activities would not constitute infringement.[83] This is because the goods would be considered to have been lawfully acquired from the market. In this case, if the independent repairer offers for sale or otherwise deals with such goods, it is not infringement, unless those dealings impair or alter the original condition of the goods.[84] Such ‘other dealings’ in the goods are contrary to the term ‘use’ and may include a ‘resale’. Additionally, a ‘resale after constructive modifications only to make it work provisionally’, without having to replace the original product with an unauthorised reproduction, cannot be regarded as an infringement.[85] The reason behind this is that the principle of exhaustion is applicable to the goods in circulation under the authorisation of the IP rightsholder.
As both fashion upcycling and the right to repair share a common objective, extending the life of the product and contributing towards sustainable living, an analogy can be drawn with regard to their interface with IP. While the right to repair focuses on minimising e-waste by allowing it to be repaired by an external agency, fashion upcycling seeks to extend the usable life of fashion items by adding or modifying their original look. Hence, as in the case of e-waste repairs, certified fashion upcyclers may be granted the right to modify fashion items to ensure they can be reused instead of being discarded. Such permissions to modify may be provided by the IP right holder to any interested upcycler. The upcyclers may be mandated to make a disclosure clarifying that the upcycled product has been made and assembled by them and that it has no affiliation with the original brand. Such a disclaimer would make it easy to claim the exception to infringement under trademark law.[86]
Therefore, the cause of sustainable fashion may be encouraged under IP. Although sustainable fashion may not be able to adapt to IP, the limitations and exceptions under IP may be extended to sustainable fashion. The section below discusses some business model reforms that are based on applying the principles underlying IP to sustainable fashion in order to ward off any claims of infringement.
4. Recommendations
While the objectives of the circular economy alone may not fully drive fashion brands toward sustainable practices, targeted business model reforms can actively encourage and facilitate this transition. In order for IP to be used as a mechanism to promote sustainable fashion, the following business model reforms may be adopted:
a) Participatory Design Approach
Fashion houses and brands may launch their special limited-edition collection of upcycled garments by resorting to a license agreement that is based on sharing certain sewing or design patterns with fashion upcycling brands or private entities.[87] This is also known as the participatory design approach, as followed in the mid-20th century.[88] For example, Patagonia ReCrafted, an iconic outdoor clothing brand, launched its Worn Wear take-back program in 2019, where it collated its pre-owned gear and clothing from customers and re-crafted it into unique pieces that could be reused. The customers were motivated to trade in their old Patagonia wares by being rewarded with store credits based on the condition of the item being given back.[89] Similarly, under ReBurberry Services, Burberry has launched cashmere upcycle, which remakes cashmere scarves after signs of wear and tear, that can be visibly repaired through custom embroidery and darning. This infuses a new life into the damaged or older styles of cashmere upcycle, thereby re-creating unique, original Burberry pieces.[90] These examples show how brands embrace upcycling within their own operations and effectively license it to repurpose their products.
b) Voluntary Trademark Licensing
A business model encouraging the sharing of revenues and licensing out trademarks under a ‘voluntary license agreement’ between the fashion brands and sustainable fashion brands (upcycled fashion brands) is also another form of collaboration to promote upcycling while respecting IP. In 2014, for instance, Re/Done began with the concept of upcycling vintage Levi’s into modern fits by breathing new styles into preloved raw goods, thereby extending their life from just being a stagnating stock and adding to the head of landfill garment waste. Re/Done has since become a well-known upcycled fashion brand and has collaborated with major American brands like Dr. Scholl’s, Hanes, and even Ford, demonstrating the commercial viability of licensed upcycling partnerships.[91]
c) Collective Ownership Doctrine
IP can be used to promote sustainable fashion by providing for a collective ownership of the traditional knowledge and traditional cultural techniques used in the production and manufacture of textiles.[92] Several such methods, including regenerative fashion [93], biomimicry[94] and modular fashion [95], are collective ownership models that are based on the collaboration of fashion brands with traditional communities. This is a community-based social innovation for reusing and upcycling fashion apparel. These practices are central to upcycling and circular fashion systems, yet are often unrecognised within conventional IP frameworks.
Employing local artisans, weavers, and craftsmen (mostly women) in adopting sustainable methods of producing and manufacturing trend-setting fashion is a recent development in several countries.[96] Fashion brands seeking to engage ethically with traditional artisans may adopt models that share recognition, benefits, and authorship attribution with community creators, aligning with principles of benefit-sharing and cultural equity. Examples of brands imbibing traditional and cultural practices for upcycled fashion include House of Wandering Silk (India),[97] SukkhaCitta (Indonesia),[98] Harvest and Mill (USA),[99] AF aka Afsana Firdousi (Bangladesh),[100] CDK Fashion House (Bhutan),[101] UseDem by Common Objective (China)[102] Reina Ibuka (Japan)[103] Matter Prints,[104] and Artisan and Fox (Singapore).[105] These collaborations exemplify how cultural knowledge can enrich sustainable fashion, even as the legal frameworks to protect such knowledge continue to evolve.
d)Collective Social Responsibility (CSR) Mandates
As part of the CSR mandates, brands may collaborate with retail organisations and institutions that resort to upcycling unsold or unwearable garments collected by way of donations. Such solutions, however, seem to be equally distributed across the upstream side value chain (raw material extraction, textile production, manufacturing, packaging, distribution, and retail) butare insignificant for the downstream side (customer use, post-consumer garment collection, and transparency).[106] For example, in India, Project Revibe[107] and The Godadi Project [108], an initiative of India Recycle [109], are based on a model of collecting and selling pre-owned high-end items, mainly across underprivileged areas. The revenue generated is equally shared among the women workers who work for enterprises in slums that create upcycled products under pre-defined contract terms. This model not only diverts textile waste from landfills but also provides social benefits by empowering local communities.
e) Environment Impact Assessment and Extended Producer Responsibility
Fashion industries may otherwise be regulated through environmental impact assessment[110] (EIA) mandates under environmental laws requiring the mandatory use of biodegradable dyes and fabrics; however, the existing IP structure doesn’t incentivize fast fashion brands to adopt a sustainable fashion agenda. Extended Producer Responsibility (EPR)[111] is another such principle which may be read into incentivising products designed to promote circularity under patents or industrial designs. However, territorial differences around protectability criteria across countries further hinder a uniform application of such rules. Hence, in their current form, IP rights alone may be insufficient to achieve sustainable fashion objectives. Owing to the very essence of IP endowing monopolies, the objectives of circular fashion industry models, such as reuse, repair or recycle, can inadvertently be undermined. Although sustainable fashion practices can be defended under certain legal doctrines (e.g., exhaustion, fair use, or the right to repair), right holders may still choose to restrict participation unless they perceive direct benefits or legal safeguards.
f) Certification for upcycled goods
Additionally, brands may engage in a reformed concept of fashion upcycling, which has come to be known as Upmade.[112] Reet Aus, the ethical and sustainable fashion designer from Estonia, is credited for introducing a circular fashion business model aimed at cutting down the textile waste at the production stage. The project has been expanded to Asia, mainly Bangladesh and India, which face major environmental impacts. The idea is to channel the leftovers back into the design and production of new garments. This leads to maximizing the resources, thereby closing the loop by avoiding the use of virgin raw materials for first-hand production.[113] The Upmade business model comprises three components: the software, design, and certification process. While the software uses an algorithm to map and turn production leftover data into reusable designs, the certification process guarantees transparency and traceability.[114]
To supplement doctrinal reforms, legislative or voluntary adoption of a standardized symbol for upcycled goods, such as (U), could play a pivotal role in demarcating these products from original trademarked items. Much like © for copyright, ™ for unregistered trademarks, and ® for registered marks, (U) would signal to consumers and enforcement authorities that a product has been consciously and materially transformed. However, it is important that the introduction of (U) should be non-compulsory to avoid burdening grassroots upcyclers, but recognized enough to offer evidentiary value in disputes. Additionally, this approach would avoid placing undue burden on grassroots upcyclers and ensure compliance with international trademark frameworks such as the TRIPS, which currently doesn’t provide for or recognize mandatory upcycling marks.[115] Over time, as the upcycling sector matures, such a demarcation can help strike a balance between trademark sanctity and socio-environmental innovation, reflecting a legal ecosystem that evolves with public interest.
g) Developing a “Similarity Index”
In light of the growing tension between trademark enforcement and sustainable fashion innovation, particularly through upcycling, legal systems must develop frameworks that balance brand protection with environmental imperatives. One such solution is the introduction of a similarity index: a context-sensitive, multi-factorial test to assess the degree of resemblance and legal impact of upcycled products in relation to original trademarked goods.
The similarity index draws inspiration from EU doctrines on average consumer perception and post-sale confusion, proposing a shift from binary infringement analysis to a more nuanced continuum. It considers factors such as transformation, consumer perception, and public interest in sustainability to determine whether infringement or dilution of a trademark has occurred.
- First, the change in the type of product is central. For instance, repurposing a Louis Vuitton handbag into a phone case suggests a functional shift and lowers the risk of consumer confusion. Conversely, converting it into another handbag with minor alterations maintains product parity and implies a higher likelihood of infringement.
- Second, a change in colour may dilute brand identity. Transforming a monochrome Chanel jacket into a neon patchwork coat using added materials can significantly weaken brand association. However, since some brands protect colour as part of their trade dress, this factor must be weighed in context.[116]
- Third, the average consumer test evaluates if a reasonably informed, observant, and circumspect consumer would associate the upcycled product with the original brand.[117] A tote bag made from a collage of an old Nike t-shirt bearing only a partial “swoosh” logo, particularly if properly labelled as upcycled, is unlikely to mislead consumers. In contrast, shoes displaying the logo prominently in typical locations may suggest origin confusion.
- Fourth, a change in utility also signals transformation. If a Gucci scarf is turned into a lampshade cover, it serves a new functional and aesthetic purpose, distancing itself from the original product. Minimal modifications, however, such as cutting the scarf into a headband, retain both form and utility, increasing the risk of confusion.
- Fifth, price disparity can reflect market repositioning. A reworked Prada jacket sold at a fraction of its original price may indicate a lack of affiliation. Yet, price alone is insufficient; courts must assess it alongside branding, presentation, and disclaimers to rule out strategic counterfeiting.
- Lastly, the market impact must be weighed against the environmental benefit. If an upcycled product avoids harming the original brand’s market share while reducing textile waste, the equitable case for non-infringement strengthens. For instance, a label disclosing that a product is handmade from discarded garments, paired with data on waste diverted, enhances the sustainability argument.
Thus, a codified similarity index would provide judicial clarity, enabling courts to distinguish between exploitative use and transformative reuse. By embedding sustainability metrics within trademark adjudication, the law can evolve to accommodate circular economy goals while preserving the essential purpose of trademarks, that is, consumer protection and source identification.
5. Conclusion
While the rise of sustainable fashion presents a complex legal challenge, a shift towards the discussed strategies would foster a harmonious balance between IP law and sustainable fashion. By extending the scope of IP rights to the cause of sustainable fashion (through doctrines like exhaustion and transformative fair use) and encouraging voluntary mechanisms (like licensing and certification), the fashion industry can move towards circular models without stepping outside the bounds of IP law. The goal is to utilize the flexibilities within IP laws to make IP-protected goods more accessible, while reinforcing innovation in sustainability, rewarding creativity and maintaining brand integrity. An inclusive IP framework would balance the interests of both the right holder and society.
Authors:
| Dr. Gunjan Chawla Arora
Dr. Gunjan Chawla Arora is an Assistant Professor of Law and Head, Centre for Intellectual Property Rights at Institute of Law, Nirma University, Ahmedabad. With about a decade’s experience in research and academia she specializes in Intellectual Property Rights Law. Dr. Arora holds a Ph.D. in Law from Gujarat National Law University, Gandhinagar. She has made significant contributions to the field of IPR, with notable publications in various law journals and book chapters published by renowned publishers including Cambridge University Press, Edward Elgar, SAGE, and IGI Global. Currently, she is exploring the relevance of IP in Remanufactured electronic goods, Generative AI, Celebrity Rights, Digital Media and Traditional Cultural Heritage. Her allied research interests include Entertainment Media, E-Commerce Consumer Rights and Telecommunication laws. |
Dr. Neelesh Shukla
Dr. Neelesh Shukla is currently serving as an Assistant Professor of Law at the Institute of Law, Nirma University, where he is also the Associate Head of the Centre for Intellectual Property Rights (CIPR). With over six years of academic experience, his work primarily involves undergraduate teaching, research activities, and participation in institutional academic and administrative initiatives. His areas of research interest include Intellectual Property Law, particularly its interface with International Investment Agreements, Competition (Antitrust) Law, Technology and Innovation Policy, Public Health, and emerging issues relating to IP and Artificial Intelligence. He is actively involved in research, academic writing, and policy-oriented discussions in these domains, and regularly engages in scholarly collaborations. Dr. Shukla holds a Ph.D. in Law from GD Goenka University, where his doctoral research focused on the protection of Intellectual Property Rights under International Investment Agreements. He completed his LL.M. in Intellectual Property Rights from National Law University Jodhpur and earned his BBA LL.B. (Honours) degree from National Law University Odisha. |
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[23] Fashion upcycling method has been identified by academics and practitioners as an upward reprocessing of waste by reliving the intrinsic value of clothing with recycling, recutting, refashioning, and closing the loop of the manufacturing system. See Sara LC Han, Priscilla YL Chan, Praburaj Venkatraman, Phoebe Apeagyei, Tracy Cassidy, and David J. Tyler, ‘Standard vs. upcycled fashion design and production’ (2017) 9(1) Fashion Practice (2017) 69.
[24] Thrifting is a popular phenomenon among the younger generation that involves purchasing second-hand clothes as part of an ongoing effort in fashion with the principle of sustainable fashion. This includes the practice of choosing and using second-hand clothes rather than buying new ones, as an alternative to reducing environmental impact. See Y. N. Zahro & H. R. Dhona, ‘The Meaning of Thrifting In # Tukarbaju Campaign in Zero Waste Indonesia’ (2023) 11(1) Lontar: Journal of Communication Science 1.
[25] Swapping is a form of collaborative fashion consumption (CFC) where consumers have access to already existing garments instead of purchasing new fashion products in order to acquire individual ownership. See R. W. Belk, ‘You are what you can access: sharing and collaborative consumption online’ (2014) 67(8) Journal of Business Research 1595.
[26] Jagdeep Singh, Kyungeun Sung, Tim Cooper, Katherine West and Oksana Mont, ‘Challenges and opportunities for scaling up upcycling businesses–The case of textile and wood upcycling businesses in the UK’ (2019) 150 Resources, Conservation and Recycling 104439.
[27] See Prestonettes Inc v Coty, 264 US 359 (1924); Intel Corp v CPM United Kingdom Ltd [2007] EWCA Civ 431; Trade Marks Act 1999 (India), s 30.
[28] Chanel, Inc v What Goes Around Comes Around, LLC, 2022 WL 902454 (SDNY 2022).
[29] Grace Browne, ‘What Happens When You Try to Upcycle a Louis Vuitton Bag?’ WIRED (23 March 2021) https://www.wired.com/story/what-happens-when-you-try-to-upcycle-a-louis-vuitton-bag/ accessed 15 November 2025.
[30] Christian Barrère and Sophie Delabruyère, ‘Intellectual property rights on creativity and heritage: the case of the fashion industry’ (2011) 32 European Journal of Law and Economics 305.
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[32] Burberry, as a brand name, has registered more than seventy trademarks under the USPTO and is also registered in India under The Trademark Act, 1999. See also; Christine Liwag Dixon, The Untold Truth of Burberry (Thelist, 2020) <https://www.thelist.com/186661/the-untold-truth-of-burberry/> accessed on 15 November 2025.
[33] Namah Bose, ‘Christian Louboutin and The Single Colour Trademark Battle’ (2021) Fashion Law Journal <https://fashionlawjournal.com/christian-louboutin-and-the-single-colour-trademark-battle/#:~:text=In%20the%20second%20case%20it%20was> accessed on 15 November 2025.
[34] India, the UK, the EU and Canada follow the Industrial Design IP regime to protect designs applied to an article such that it appeals to the eye by infusing it with an aesthetic and ornamental value.
[35] A US Model based on granting designs as Design Patents.
[36] The Industrial Design Act 2000, s 2(d) (India)
[37] The Registered Designs Act 2000 (India)
[38] Article 2 Patent Law of the People’s Republic of China (amended up to October 17, 2020), China, <https://www.wipo.int/wipolex/en/legislation/details/21027> accessed on 15 November 2025.
[39] USPTO, Nonprovisional (Utility) Patent Application Filing Guide https://www.uspto.gov/patents/basics/apply/utility-patent accessed on 15 November 2025.
[40] IP in the Fashion Industry, (EU Factsheet) <https://intellectual-property-helpdesk.ec.europa.eu/system/files/2021-02/EU_IP_HD_Fact_Sheet_IP-fashion-industry.pdf> accessed on 15 November 2025.
[41] The Copyright Act 1957, s 2(c)(iii).
[42] Copyright Law of the People’s Republic of China (2020 Amendment), art 3(4).
[43] Copyright Act 2021, subdivision (5)(20)(1)(a)(iii) (Singapore).
[44] Copyright Law of Japan, art 2(2).
[45] Law of the Republic of Indonesia (28 of 2014 on Copyrights), art 40(1)(g).
[46] Vietnam Intellectual Property Law – No. 50/2005/QH11, art 14(1)(g).
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[55] Daryl Wander, ‘Trendsetting: Emerging Opportunities for the Legal Protection of Fashion Designs’ (2010) 42 Rutgers LJ 247.
[56] See, Trade Marks Act 1999 (India), s 30; Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark [2009] OJ L78/1, art 15; Prestonettes Inc v Coty, 264 US 359 (1924).
[57] Marc Bain, ‘Rent the Runway Is Slowly Winning Over Luxury Fashion’ Quartz (6 October 2018) https://qz.com/1414567/rent-the-runway-is-slowly-winning-over-luxury-fashion accessed 15 November 2025.
[58] Naeun Lauren Kim and Terry Haekyung Kim ‘Why buy used clothing during the pandemic? Examining the impact of COVID-19 on consumers’ second-hand fashion consumption motivations’ (2022) 32(2) The International Review of Retail, Distribution and Consumer Research 151.
[59] See also Chanel Inc v The RealReal Inc, 449 F Supp 3d 422 (SDNY 2020), discussing the importance of disclosures and disclaimers in luxury resale to avoid trademark liability.
[60] Péter Mezei and Heidi Hark̈onen, ‘Monopolising trash: a critical analysis of upcycling under Finnish and EU copyright law’ (2023) 18(5) Journal of Intellectual Property Law & Practice 360.
[61] This form of upcycling includes overtly adding various new aspects to the original piece of garment, thereby transforming it completely, for e.g., creating a customised bridal edition of branded converse shoes. See, Irene Calboli, ‘Upcycling, Sustainability, and IP: What It Means for the World of Fashion’ (WIPO Magazine, July 2023) <https://www.wipo.int/wipo_magazine_digital/en/2023/article_0022.html> accessed on 15 November 2025.
[62] This form of upcycling includes using the constituent elements to re-create a completely different piece of garment, for e.g., using the pieces of worn-out jeans along with its logo to a shirt. See, Irene Calboli, ‘Upcycling, Sustainability, and IP: What It Means for the World of Fashion’ (WIPO Magazine, July 2023) <https://www.wipo.int/wipo_magazine_digital/en/2023/article_0022.html> accessed on 15 November 2025.
[63] The popular techniques of upcycling in used garments are patchwork (adding decorative material), scraps (changing the design by bringing together different prices), and half-half (combining two or more materials).
[64] See Chanel Inc v What Goes Around Comes Around, LLC, 2022 WL 902454 (SDNY 2022); Arsenal Football Club plc v Reed [2001] EWCA Civ 732; Trade Marks Act 1999 (India), s 29(2); Council Regulation (EC) No 207/2009, art 9(1)(b).
[65] Anthony M. Keats, ‘Trendy Product Upcycling: Permissible Recycling or Impermissible Commercial Hitchhiking?’ 110(3) The Trademark Reporter 712.
[66] Nike, ‘Nike By You’ (Nike) <https://www.nike.com/in/nike-by-you> accessed 15 November 2025.
[67] Louis Vuitton Malletier v www.Haute.com (Delhi High Court, 16 December 2022); Louis Vuitton Malletier v Abdulkhaliq Abdulkader Chamadia, 2024 SCC OnLine Del 8010; Seagate Technology Llc vs Daichi International (Delhi High Court, 24 January 2024); Satya Infrastructure Ltd v Satya Infra & Estates Pvt Ltd, 2013 SCC OnLine Del 508; Louis Vuitton Malletier v Capital General Store, 2023 SCC OnLine Del 613; Louis Vuitton Malletier v Javed Khan, 2022 SCC OnLine Del 2897
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[72] Section 29 of TM Act.
[73] Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark [2017] OJ L154/1, art 9.
[74] Trade Marks Act 1994 (UK), s 10.
[75] Trademark Act of 1946, § 32 (15 USC § 1114).
[76] The ‘First Sale doctrine’ is an exception to infringement under both Copyright and Trademark Law. It postulates that after the first sale of a work protected under Copyrights or Trademarks, the right holder cannot control the further sale and distribution of such work.
[77] This principle has been derived from the ‘Fair Use doctrine’, which is a defence to infringement of Copyright works. Transformative Fair Use is considered an extension of the fair use doctrine. Upcycling is an example of Transformative Fair Use.
[78] Péter Mezei and Heidi Hark̈onen, ‘Monopolising trash: a critical analysis of upcycling under Finnish and EU copyright law’ (2023) 18(5) Journal of Intellectual Property Law & Practice 360.
[79] Irene Calboli ‘Pushing a Square Pin into a Round Hole? Intellectual Property Challenges to a Sustainable and Circular Economy, and What to Do About It’ (2024) 55(2) IIC-International Review of Intellectual Property and Competition Law 237, 238.
[80] It is based on the notion of granting consumers the right to repair their lawfully purchased products directly, or by selecting a repair service of their choice, as opposed to returning to the manufacturer or manufacturer-approved providers for the repair. Only manufacturers or manufacturer-approved services are allowed to repair the product they sell. It is based on the notion of granting consumers the right to repair their lawfully purchased products directly or by selecting a repair service of their choice, as opposed to returning to the manufacturer or manufacturer-approved providers for the repair. It has been developing in the electronics spare parts and repairs market sector as an exception to trademark infringement.
[81] Irene Calboli, ‘The Right to Repair: Recent developments in the USA’, WIPO Magazine (August, 2023) https://www.wipo.int/web/wipo-magazine/articles/the-right-to-repair-recent-developments-in-the-usa-56378 accessed on 15 November 2025.
[82] Himanshu Arora, ‘“Right to Repair” vis－à－vis Indian Trade Mark Law: A Comparative Analysis’ 24(1-2) The Journal of World Intellectual Property (2021) 41-54.
[83] Section 30(3) and Section 30(4), Indian Trademark Act, 1999.
[84] Kapil Wadhwa v Samsung Electronics, 2013 (53) PTC 112 (Del.) (DB)
[85] Himanshu Arora, ‘“Right to Repair” vis－à－vis Indian Trade Mark Law: A Comparative Analysis’ 24(1-2) The Journal of World Intellectual Property (2021) 41-54.
[86] Anadi Keshari and Palak Thakur, ‘The Fashion Industry’s Dilemma: Balancing Upcycling and Trademarks’ (The IP Law Post, 15 December 2024) <https://iplawpost.wordpress.com/2024/12/15/the-fashion-industrys-dilemma-balancing-upcycling-and-trademarks/> accessed 15 November 2025.
[87] Heidi Härkönen, ‘The new era of home-made fake fashion: the phenomenon of home-sewn copies and the possibilities for fashion houses to take advantage’ (2018) 13(11) Journal of Intellectual Property Law & Practice 860.
[88] Duan Wu, Mingyu Zhuang, Xinni Zhang, and Yuheng Zhao, ‘Towards circular fashion: design for community-based clothing reuse and upcycling services under a social innovation perspective’ (2022) 15(1) Sustainability 262.
[89] See, Patagonia Stories, ‘How we turn Scraps into New Gear’ (Patagonia, October, 2019) <https://www.patagonia.com/stories/second-stories/story-74520.html#:~:text=The%20ReCrafted%20process%20looks%20something%20like%20this:%20Through%20Patagonia%E2%80%99s%20Worn?msockid=3a6ed05a39c56f201833c55f386d6e82> accessed 15 November 2025.
[90] See, ReBurberry Services Burberry Official: It involves a range of services launched by Burberry in 2020 that demonstrates their commitment to Circularity <https://us.burberry.com/c/reburberry/> accessed 15 November 2025
[91] See, RE/SPONSIBILITY (Re/Done) was a mission led by Sean Barron and Jamie Mazur of taking the old denims and making them new again, bringing the revolutionary concept of up-cycling to the forefront of the industry. It was launched in 2014 in Los Angeles. <https://shopredone.com/en-in/pages/our-responsibility> accessed 15 November 2025.
[92] Caroline Joelle Nwabueze, ‘Indigenous Knowledge Systems In Traditional Textile Techniques And Intellectual Property: Perspectives From Nigeria’ (2023) 4(1) Esut Public Law Journal 336.
[93] Regenerative agriculture is a farming practice of indigenous communities that is aimed at maximizing on-farm inputs and focuses on strategically planting diverse crops that support the growth of other crops while acting as cover crops and actively works to reverse the negative harm done to the environment. See, Regenerative Fashion: A Sustainable Approach – Fibre2Fashion <https://www.fibre2fashion.com/industry-article/10057/regenerative-fashion-a-sustainable-approach> accessed 15 November 2025.
[94] Biomimicry is based on creating sustainable designs inspired by nature. It prioritises design functionality and resource efficiency. Some examples of its contribution to the textile industry include the lotus effect, spider silk, camouflage, and butterfly wing patterns. See, S., M. Das Bhowmick, S. K. Chattopadhyay, and S. Basak ‘Application of biomimicry in textiles’ (2015) 109(5) Current Science 893.
[95] Modular fashion includes clothing and garments that can be dis/assembled into interchangeable component parts, like sleeves, collars, etc., thereby customizing the appearance of the same outfit. See, Xiaomeng Zhang, Aurelie Le Normand, Songyi Yan, Jane Wood, and Claudia E. Henninger ‘What is modular fashion: towards a common definition’ (2024) 204(9) Resources, Conservation and Recycling.
[96] Santosh Bommanavar & Shruti Malipatil, ‘New Culture Fashion: The Convergence of Slow Fashion, Sustainability and Fast Fashion’ (2024) 85(16) Madhya Bharti -Humanities and Social Sciences 133.
[97] See, House of Wandering Silk <https://www.wanderingsilk.org/our-team> accessed 15 November 2025.
[98] See, SukkhaCitta <https://www.sukkhacitta.com/> accessed 15 November 2025.
[99] See, Harvest & Mill <https://harvestandmill.com/pages/our-story> accessed 15 November 2025.
[100] See Afsana Ferdousi: Turning the language of protest into fashion (The Business Standard, February 2025) <https://www.tbsnews.net/feature/mode/afsana-ferdousi-turning-language-protest-fashion-135214> accessed 15 November 2025.
[101] See, CDK Fashion House in Bhutan <https://inspiredbybhutan.com/pages/cdk-bhutan> accessed 15 November 2025
[102] UseDem on Common Objective (https://www.commonobjective.co/usedem) accessed 15 November 2025.
[103] See Reina Ibuka <https://www.mariareina-paris.com/about> accessed 15 November 2025.
[104] See, MATTER <https://shop.matterprints.com/> accessed 15 November 2025.
[105] See Artisan & Fox | Our Story <https://artisanandfox.com/pages/our-story> accessed 15 November 2025.
[106] Hau-Ling Chan, Xiaoyong Wei, Shu Guo and Wing-Hong Leung, ‘Corporate social responsibility (CSR) in fashion supply chains: A multi-methodological study’ (2020) 142 Transportation Research Part E: logistics and transportation review 102063.
[107] See, Revibe, by India Recycles is a brand of upcycled products made from unsold items <https://revibe.me/> accessed 15 November 2025.
[108] See, The Godadi Project, by India Recycles, gogadis (quilts made of patchworks) are made of unwearable and faded clothes <https://www.indiarecycles.org/zero-waste-promise.html> accessed 15 November 2025.
[109] India Recycles is a campaign started with an aim to promote the sustainable model of various concepts surrounding the Reuse & Recycling of products through the collection of various pre-owned items as donations in Ahmedabad, a city in the State of Gujarat, India. <https://www.indiarecycles.org/our-model.html> accessed 15 November 2025.
[110] ‘Environmental impact assessment’ means a national procedure for evaluating the likely impact of a proposed activity on the environment; ‘Impact’ means any effect caused by a proposed activity on the environment, including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors (Convention on Environmental Impact Assessment in a Transboundary Context) <https://unece.org/fileadmin/DAM/env/eia/Publications/2015/ECE.MP.EIA.21_Convention_on_Environmental_Impact_Assessment.pdf> accessed 15 November 2025.
[111] ‘Extended Producer Responsibility’ is a concept where producers (including manufacturers, importers, distributors and retailers etc.) of products bear a significant degree of responsibility for the environmental impacts of their products throughout the product life-cycle, including upstream impacts inherent in the selection of materials for the products, impacts from manufacturers’ production process itself, and downstream impacts from the use and disposal of the products. Producers accept their responsibility when designing their products to minimise life-cycle environmental impacts, and when accepting legal, physical, or socio-economic responsibility for environmental impacts that cannot be eliminated by design (UNEP Reducing Plastic Pollution through the Extended Producer Responsibility) <https://www.unep.org/reducing-plastic-pollution-through-extended-producer-responsibility> accessed 15 November 2025.
[112] Reet Aus, Harri Moora, Markus Vihma, Reimo Unt, Marko Kiisa, and Sneha Kapur ‘Designing for circular fashion: integrating upcycling into conventional garment manufacturing processes’ (2021) 8 Fashion and Textiles 1. See, Reet Aus <https://www.reetaus.com/pages/about-us> accessed 15 November 2025.
[113] See, Reet Aus <https://www.reetaus.com/pages/about-us> accessed 15 November 2025.
[114] The UPMADE software helps to map the textile waste in the given manufacture and uses a special algorithm to turn production leftover data into input information helping to design and produce upcycled garments. The software also carries out resource savings calculations. The UPMADE design approach, turning trash to trend, is a service helping the brand to upcycle its textile leftovers, maximising fabric use, while tailoring to the design criteria of the brand owner. A manufacturing company wishing to produce UPMADE products will need to go through the UPMADE certification process. See UPMADE: towards a circular fashion industry, SEI <https://www.sei.org/features/upmade-circular-fashion-industry/> accessed 15 November 2025.
[115] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1994), art 15–21.
[116] Christian Louboutin SAS v Yves Saint Laurent America Holding Inc 696 F.3d 206 (2d Cir. 2012).
[117] Case C-342/97 Lloyd Schuhfabrik Meyer & Co GmbH v Klijsen Handel BV ECLI:EU:C:1999:323, para 26.
