Document Type
Article
Abstract
This Article elaborates on the practice of upcycling and argues that upcycling should be considered a lawful practice under current trademark rules in the United States. Upcycling is the process of taking existing products lawfully sold on the market, in most instances, used products, and giving these products a second life by adding additional elements and decorations or by using the still viable product parts to create new products altogether. Because of its focus on reusing existing products or product parts, the practice of upcycling has become increasingly popular, also because it promotes circular and environmentally friendly production practices. However, upcycled products often display logos and patterns from the original product, many of which are famous trademarks, which has led to widespread opposition by trademark owners— especially in the luxury fashion industry. Specifically, trademark owners have argued that upcycled products are “materially different” from the originals and can lead to consumer confusion and dilution of their marks. This Article disagrees with this position and argues that upcycling should be considered a lawful practice under current United States trademark law. In particular, it considers current trademark defenses and how they apply to the practice of upcycling. In this context, the Article argues that upcycling should be considered lawful under a broad interpretation of the doctrines of trademark, first sale, and fair use. The Article additionally argues that upcycling activities, particularly when clearly communicated through labeling and disclaimers, warrant First Amendment protection under the United States’ Constitution as a form of expressive speech advocating for circular economy principles and environmentally conscious practices.
DOI
10.37419/JPL.V12.I1.4
First Page
157
Last Page
252
Recommended Citation
Irene Calboli & Gabrielle Armstrong,
Upcycled and Rightful: Navigating Trademark Law and the Circular Economy,
12
Tex. A&M J. Prop. L.
157
(2025).
Available at:
https://doi.org/10.37419/JPL.V12.I1.4