Brand protection in the upcycling era
Awareness regarding the sustainable way of living is increasing within the community. One particularly recent trend in sustainable living is marked by the beginning of the upcycling era. Upcycling, as opposed to recycling, is the act of converting old or outdated resources into value-added goods in a shorter amount of time. Upcycling is regarded as more ecologically beneficial than recycling, since it does not involve smelting or burning.
Designer brands’ paper bags, for example, are transformed into mobile phone holders, old gloves are combined and sewed into jackets, old goose down coats are turned into women’s purses, and a variety of other goods transformations. Due to modifications in their appearance and functions, as well as well-known brand labels that are still visible, upcycled items often have a high market value. From the brand owner’s perspective, this upcycling trend brings its own challenges in their efforts to maintain their brand’s reputation.
Infringing upcycled products
Trademarks are a powerful brand protection tool that brand owners and upcyclers need to consider. In the UK, the definition and rights of the brand owners are regulated by the Trademark Act 1994. In the United States, trademarks are regulated under the Trademark Act of 1946 (The Lanham). Meanwhile, in Indonesia, trademarks are defined by Law No. 20 of 2016 Article 1 point 1.
These regulations are in line with what is regulated by the WTO through Article 15 of TRIPS. The regulations state that a mark is any sign or combination of signs declared by an entity or individual that has the ability to distinguish the goods or services of one company from that of another.
According to the WTO, trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or misconceptions about the source of the goods and/or services.
Upcycling basically involves changing the form and function of the product. Several cases of upcycling product lawsuits occur because the sale of the upcycled products or the alteration is done by embedding registered trademarks, causing confusion amongst consumers.
The Chanel case against Shriver + Duke is one example. Shriver+Duke is a company that upcycled Chanel buttons into jewelry. In its lawsuit filed in New York Federal Court in 2021, Chanel accused the company of misusing its trademark by using its buttons with the famous interlocking ‘C’ logo to make and market attractive costume jewelry and rely on the marketability and fame of the Chanel brand.
According to a lawyer in KDC commenting on the case, a trademark infringement can occur if someone uses a registered trademark for products or services of the same type as that produced by the trademark. In the case above, what the defendant did could cause confusion for consumers because they would not be able to distinguish which jewelry was produced by Chanel and which was produced by the defendant.
Brand protection measures
The popularity of upcycled items is inextricably linked to the role of digital influencer campaigns on social media. As of the date of this article, the hashtag #upcycle has over 5.5 million posts on Instagram alone, featuring diverse DIY upcycle artworks, garments, and furniture. In addition, posts under the hashtag have been viewed over 2 billion times on TikTok.
Consequently, brand protection mitigation measures need to include monitoring on social media. Most social media platforms have set up online mechanisms for those who wish to report accounts or products that violate regulations, including trademark infringement.
In terms of filling out online forms, social media will carry out further investigation. However, to report a violation, the complainant must have a thorough understanding of the product and the trademarks associated with it. The report will be reviewed and if proven to infringe a trademark, the platform will take appropriate action, including taking down the product in question from the platform.
Even after the takedown, trademark owners must keep an eye out to ensure that the infringing products are not offered or sold again.
Integrity Asia is experienced in assisting with the reporting for removal of infringing products on online channels and continuous online channel monitoring to detect and identify whether the infringing product is being re-offered using a different account or channel. Contact us for more detailed information regarding Brand Protection services.
Image source: Instagram