Upcycling – commonly understood as the creative transformation of pre-existing goods into products of greater value or with an extended life cycle, without resorting to industrial deconstruction – raises complex questions under intellectual property law. Two recent decisions – one from the Tribunal Judiciaire de Paris and the other from the High Court of Singapore – found liability for creators who marketed “upcycled” products incorporating protected IP elements from Hermès and Louis Vuitton without authorization. In France, the case concerned Hermès scarves transformed into decorations for Levi’s jackets; in Singapore, accessories sold on Instagram were presented as made from authentic LV materials. These precedents highlight the growing tension between the principles of the circular economy, which promote reuse and the valorization of materials, and the intellectual property system, which pursues the protection of exclusive rights and the safeguarding of the economic and reputational value of distinctive signs and works. Upcycling differs from traditional recycling in that it does not involve the destruction or industrial deconstruction of the material, but rather its artisanal and creative transformation while retaining its recognizability. It is a practice responding to environmental goals, such as waste reduction and product life extension, and is today supported by an evolving regulatory framework. In Europe, several legislative and policy instruments encourage durability and repairability of goods, such as Regulation (EU) 2024/1781 on the ecodesign of sustainable products, the proposed Directive COM/2023/420 amending Directive 2008/98/EC on waste, and the EU Strategy for Sustainable and Circular Textiles (2022). However, none of these texts expressly recognize upcycling as a “protected” practice or provide a special legal regime, generating uncertainty for creators, particularly when the activity involves trademarks or copyrighted works. In the Hermès case, decided by the Tribunal Judiciaire de Paris on April 10, 2025, the court upheld Hermès’ claims against Maison R&C and Atelier R&C, who had applied patches cut from Hermès scarves onto Levi’s jackets resold online. On copyright grounds, the judges recognized the originality of the graphic motifs of the scarves, qualifying them as protected works, and rejected the defense based on exhaustion of rights. Referring to the Allposters precedent (C-419/13), the court clarified that exhaustion does not apply when the work undergoes a change of medium: transforming a scarf into a patch sewn onto a jacket was qualified as a new reproduction, requiring the author’s consent. As for trademarks, the court recalled that under Article 15(2) EUTMR, even where exhaustion applies, the right holder may oppose further uses of the mark if “legitimate reasons” exist. The alteration of the condition of the scarves and, in some cases, the removal of the mark were considered such reasons, establishing liability for trademark infringement. The court also examined defenses based on artistic freedom and environmental purposes but held that, in the case at hand, they could not prevail over Hermès’ exclusive rights. The decision awarded €50,000 for IP infringements and €5,000 for parasitism, as well as significant ancillary measures, including an immediate ban on commercialization, product recall, and judicial publication of the ruling. In the Louis Vuitton case, decided by the High Court of Singapore on July 2, 2025, the court dealt with an influencer who marketed accessories presented as “upcycled” from authentic LV materials. Investigations revealed that part of the materials in fact came from counterfeit goods and that the marketing strategy sought to exploit the reputation of the brand. The conduct was held to amount to infringement under the Trade Marks Act, emphasizing that subjective intent to deceive is not required, nor are disclaimers or price differences relevant. The court further clarified that the unauthorized use of authentic materials deprives the goods of their status as “genuine goods.” Applying Section 31(6) of the Trade Marks Act, the court adopted a multifactorial test (seriousness of the infringement, economic benefit, harm caused, and deterrence), reducing the damages claim from nearly 3 million to 200,000 SGD. Other international precedents confirm this trend: in the United States, Chanel Inc. v. Shiver and Duke (N.D. Ga., 2021) found infringement in the production of jewelry made with Chanel buttons, while in Rolex v. Reference Watch (C.D. Cal., 2020) the customization of Rolex watches was blocked with an injunction and damages. These cases show how courts strictly apply trademark and copyright rules even to transformed or personalized products, recognizing confusion, damage to reputation, and parasitism. The decisions discussed illustrate that when upcycling involves the visible integration of trademarks or copyrighted works into new products intended for commercialization, disputes under copyright and trademark law may arise. This does not exclude the lawfulness of upcycling per se, but it does require a careful assessment of the balance between creativity, sustainability, and the protection of intellectual property rights. For creators, the challenge lies in innovating responsibly, respecting third-party rights, and seeking new forms of material valorization. For rights holders, the goal remains to protect investments, intangible assets, and brand image. The most recent case law appears to have consolidated a restrictive approach, leaving very limited room for unauthorized upcycling in the fashion industry.
2026 - Morri Rossetti
