he textile industry is a constantly changing phenomenon that has become increasingly aware of the environmental problems it produces and the new ways of combating it.
As consumers are becoming increasingly aware of the need for responsible consumption that does not harm the environment, numerous sustainable fashion proposals have emerged that are committed to reducing the carbon footprint and thus contributing to slowing down climate change.
The first of these proposals involves what is known as upcycling, a new way of giving a second life to an existing product by (i) deconstructing the product to transform it into a new one - for example, using buttons with a company's brand name to create costume jewellery accessories - or (ii) transforming an existing product into something new by adding additional elements - for example, when fringes and studs are added to a product.
This new form of textile recycling may entail some legal problems with respect to the industrial and intellectual property of companies, since when the materials used to create these new pieces are protected by trademarks, copyrights, or other intellectual property rights, they may be protected by the law. other related rights, they could lead to confusion among consumers about the origin of the products.
Although we might think that the principle of exhaustion of rights would protect this new form of textile marketing that can use third-party trademarks to create new products, the reality is quite different, since the main exception to the exhaustion of rights is that the quality of the product is not altered.
That is to say, for example, when a company markets clothing of another company's brand which has been legitimately acquired, and without the same having been altered - a clear example of this is the marketing of second-hand clothing - the trademark owner could not prevent the marketing, since the product was legitimately acquired and made available on the market, and therefore there would be no trademark infringement.
The case of upcycling is different when, for example, buttons containing the logo of a well-known fashion company are used to create a completely different product, such as earrings. By altering the composition of the product, given that the products are substantially different - Jacket vs. jewellery - there is no exhaustion of rights and, therefore, a full-fledged trademark infringement would be taking place.
And this last example is what happened in the Chanel Inc. v. Shiver + Duke LLC case, when Chanel sued Shiver, a small jewellery company that used buttons that included the Chanel logo, for subsequent marketing. The defendant company used the buttons to incorporate them into its jewellery for resale. Chanel claimed that the buttons were not obtained directly from Chanel, nor did they have Chanel's consent. Although both parties reached an agreement to put an end to the dispute, we do not believe that exhaustion of rights could have been invoked in this case either, since the function of the buttons in the two cases are completely different - clothing vs. jewellery - and Chanel could have argued that the quality of the product was altered, resulting in a use substantially different from the original and, therefore, in a trademark infringement.
There is no doubt that suprarecycling is a clear example of sustainability and care for the environment, but what cannot happen is that this new alternative to mass consumption of textile fashion takes advantage of the reputation of other brands for its own benefit. We have no doubt that sustainable fashion alternatives are numerous and very beneficial for society, however, legal aspects must also be taken into account, especially when it comes to protecting consumers, who are the most affected by this type of initiative.
In response to consumer demand for environmentally friendly products, companies themselves are joining these proposals with numerous ecological claims, which unfortunately are not always true, in addition to alternatives such as super-recycling. This is the case of so-called ‘greenwashing’, advertising slogans that claim to have made environmental commitments - either in their own products or in the way the company operates - without these changes being significant for the environment.
It is a phenomenon spearheaded by advertising campaigns that try to mislead consumers - or not tell the whole truth - into believing that they are dealing with companies that are significantly reducing their environmental footprint.
Many of these advertising claims often use green colours, images of natural environments, and supposedly concrete results that improve the environment without telling you how. Consumer protection law provides for fines of up to 100,000 euros, which can amount to four to six times the illicit profit made.
In short, there is no doubt that super-recycling and advertising campaigns that promote social awareness of the environment can pose intellectual property challenges, which is why IP rights must promote the general interest by promoting and safeguarding the exclusive rights of the owners.