Upcycling: ecolonomy vs. intellectual property

1. Introduction

Two court rulings issued just weeks apart, one by the Judicial Court of Paris and the other by the High Court of Singapore, found creators liable for marketing, without authorization, so-called “upcycled” products incorporating elements protected by the intellectual property rights of Louis Vuitton and Hermès. In Singapore, the case concerned branded Louis Vuitton accessories sold via Instagram. In Paris, the court was asked to decide, among other things, on the incorporation of Hermès scarves into jackets. These cases underscore a growing tension between the principles of the circular economy and the enforcement of intellectual property rights.

2. A favourable context for upcycling

Upcycling refers to a creative process by which used or discarded objects or materials are transformed into new products. It’s not just about reuse, but rather about enhancing materials by giving them a new visual, social, and cultural identity. Upcycling differs from “classic” recycling in that it does not involve chemical or industrial deconstruction of materials, and it therefore also appeals for its low environmental footprint. Upcycling is thus a craft-based practice rooted in an environmental ethic.

However, when this practice involves reusing elements bearing a brand identity (logos, monograms, distinctive visual features), it walks a legal tightrope. The very link to the original object, when it is branded, is what alerts IP rights holders and activates enforcement mechanisms.

Upcycling is flourishing in a cultural and political climate increasingly favourable to reuse. Several legislative and policy instruments promote recycling or prohibit the destruction of unsold non-food goods. France led the way in 2020 with the Anti-Waste for a Circular Economy Law (known as “AGEC”), which bans the destruction of unsold non-food items, including clothing, and mandates their reuse or recycling. Other countries or regions have taken similar steps.

This table highlights a converging trend across various legislative and para-legislative instruments toward better management of unsold materials. However, none of these texts formally or explicitly recognize upcycling as a protected practice, which, at least for the uninitiated, can foster legal uncertainty and place unaware creators in a vulnerable position.

Upcycling is not merely a reconditioning technique: it is part of a broader cultural and economic movement focused on waste reduction, creative craftsmanship, and a new model of “ecolonomy”, often driven by good intentions but sometimes overtaken by the legal demands of intellectual property. Indeed, IP rights are based on an exclusive and patrimonial system, grounded in the control of origin, quality, and brand image. Consequently, upcycling involving branded materials inevitably conflicts with IP logic.

Upcycling and intellectual property rights

Two recent decisions, one from Paris and the other from Singapore, illustrate how courts concretely approach upcycling involving IP-protected elements.

3.1. Spotlight on the “Hermès” judgment by the Paris Judicial Court, April 10, 2025

The Paris Judicial Court of first instance found both a designer and the company she directed jointly liable for selling clothing made from “Hermès” scarves[1]. The court held that the distinctive elements of the scarves, especially motifs protected by copyright and signs registered as trademarks, had been visibly reused for promotional and thus commercial purposes. The defendants argued their creations were lawful under the doctrine of exhaustion of rights. The court rejected this argument based on the CJEU judgment in Art & Allposters International BV v. Stichting Pictoright, which held that: “The rule of exhaustion of the distribution right does not apply where a reproduction of a protected work, after being lawfully marketed in the EU with the rightholder’s consent, has been transferred to a new medium (e.g., from a poster to canvas) and is placed back on the market in that new form”[2]. The Paris court concluded: “The original medium of the designs has been replaced such that each of the jackets constitutes a new reproduction of the design it features. The distribution of these jackets therefore required authorization from Hermès sellier, regardless of whether the scarves had been lawfully purchased second-hand”[3]. The judges thus found that the scarves had been transformed to such an extent as to constitute new products, thereby escaping the scope of exhaustion.

The judgment is also notable for applying the principle of proportionality, weighing the creator’s freedom of expression against the IP rights of the brand owner[4]. The court found that, in this case, the infringement of IP rights was disproportionate and could not be justified by artistic intent[5] or ecological motives[6].

Accordingly, the court ordered the defendants to immediately cease marketing the infringing goods, subject to a financial penalty, and to withdraw them from all physical and online points of sale. It also ordered judicial publication of the ruling, at the defendants’ expense, in three media outlets to inform the public of the counterfeit nature of the products. As for damages, Hermès was awarded a lump sum of EUR 50,000 for IP infringement and an additional EUR 5,000 for parasitic behavior, with the defendants ordered to cover all legal costs.

3.2. Spotlight on the “Louis Vuitton” judgment by the High Court of Singapore, July 2, 2025

On July 2, 2025, the High Court of Singapore issued a decision notable for its clarity and pedagogical value. The case opposed Louis Vuitton to a Singaporean influencer active on social media under the aliases “EMCASE SG” and later “EMCRAFTS SG”. The influencer sold leather accessories, such as phone cases and cardholders, allegedly made from materials sourced from genuine Louis Vuitton products, as part of what he described as an upcycling activity. However, technical investigations and inconsistencies in the defendant’s statements established that the materials came largely from counterfeit goods. Thus, the label “authentic upcycled” was, in the court’s view, a deliberate strategy to capitalize on the brand’s reputation.

The court found clear trademark infringement, aggravated by commercial deception and continued misconduct after a prior cease-and-desist letter. It dismissed arguments of an artisanal enterprise driven by environmental ethics, finding that the alleged motives could not override trademark law and that, in this case, the approach mainly aimed to maximize profit by misleading consumers about the products’ origin and nature. Relying on Singapore’s Trade Marks Act, the court ordered an immediate halt to the unlawful activities and awarded Louis Vuitton SGD 200,000 in statutory damages. The decision is significant in its strict application of traditional trademark principles in a context that was both ecological and digital.

3.3. Other case law: toward a consistent judicial trend

The Paris and Singapore rulings reflect an international trend in which courts adopt a rigorous approach to the commercial transformation or reuse of branded products. Judges generally find that upcycling infringes IP rights whenever the second-hand product visibly reproduces materials protected by such rights.

• Chanel Inc. v. Shiver and Duke, No. 1:21-cv-01378 (N.D. Ga., 2021) – Chanel sued a designer who incorporated Chanel-branded buttons into jewelry. The defendant did not appear. The federal court in Georgia found trademark infringement, issued a permanent injunction, and awarded damages to Chanel.

• Rolex Watch U.S.A., Inc. v. Reference Watch LLC, No. 2:19-cv-09796 (C.D. Cal., injunction issued May 28, 2020) – Rolex prevailed against a company that assembled “customized” Rolex watches. Despite its luxury DIY veneer, Reference Watch reassembled Rolex components with generic parts. The court, in a consent judgment, found that these alterations created consumer confusion and harmed the brand’s integrity. The result was a permanent injunction, product withdrawal, and monetary compensation.

3.4. The irrelevance of good intentions without intellectual property consideration

In this context, some scholars argue for an evolution in the law to better accommodate concerns of sustainability and creative innovation. While upcycling may, under certain conditions, extend product life and promote circularity, it inevitably raises critical legal questions about the unauthorized reuse of IP-protected elements. Some authors advocate for narrowly tailored exceptions akin to an ecological “fair use” or a referential use doctrine based on transparency, absence of confusion, and non-commercial purpose[7].

However, one point must be made clear: intellectual property law does not prohibit upcycling. It merely forbids the unauthorized reproduction of elements protected by law, particularly when such reproduction creates a risk of confusion, damages the brand’s reputation, or unfairly exploits the brand’s image and investment (parasitism). The true issue is not the reuse of materials, but the exploitation of protected signs. And this exploitation is neither necessary to upcycling, nor desirable in a circular economy that respects IP holders’ rights.

4. Conclusion

The cases discussed here help clarify a consistent judicial trend: the prohibition of exploiting trademarks and protected creations for commercial purposes under the guise of transformation. This body of jurisprudence does not ban upcycling per se, but reminds us that visibly integrating distinctive signs or protected works into transformed, commercialized objects creates legal liability.

For creators, the challenge now lies in innovating responsibly, respecting third-party rights while exploring new forms of material revaluation. For rights holders, the goal is simply to safeguard their investment, their intangible assets, and their image.

About IP Twins

IP Twins assists rights holders in this vigilance by offering specialized monitoring, detection, and enforcement services to protect their intangible assets in an ever-evolving digital landscape.

IP Twins supports rights holders in this vigilance by offering specialized services for monitoring, identifying, and combating online counterfeiting, in order to ensure the protection of their intangible assets in an ever-evolving digital environment.

Notes

[1] Paris Judicial Court, 3rd ch., 1st sect., Apr. 10, 2025, No. 22/10720: Legifrance.gouv.fr.

[2] CJEU, Jan. 22, 2015, C-419/13 Art & Allposters International BV v. Stichting Pictoright, para. 50. Cited in the Paris judgment (see para. 103).

[3] Ibid., para. 104.

[4] Article 17.2 of the Charter of Fundamental Rights of the European Union.

[5] Article 11 of the Charter of Fundamental Rights of the European Union.

[6] Article 37 of the Charter of Fundamental Rights of the European Union.

[7] See, e.g., Martin Senftleben, “Developing Defences for Fashion Upcycling in EU Trademark Law,” GRUR International, Vol. 73, Issue 2, February 2024, pp. 99–110, https://doi.org/10.1093/grurint/ikad131.