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.