A Stitch Too Far? Does Upcycling Fashion New Products or Unravel a Brand’s Reputation?

The rise of the circular economy is gradually altering the fashion industry. More and more consumers are looking beyond fast fashion and traditional high street shopping, and are instead tailoring their purchasing habits towards clothing rental services, vintage and thrift stores, and resale platforms such as Vinted and Depop. As the demand for more sustainable and ethical alternatives continues to stay in vogue, the practice of upcycling has become an increasingly popular way of meeting consumer demands for more environmentally conscious products.

In simple terms, as outlined in our previous blog on upcycling (here), the practice of upcycling involves taking an existing product and transforming it into something new, often creating a product with a fresh aesthetic appeal. By giving products a second strut down the catwalk, rather than sending them to landfill, upcycling can, in theory, extend the lifespan of goods while offering consumers unique, one-of-a-kind pieces.

However, the legal implications of upcycling are far from seamless, and the practice has attracted increased legal scrutiny in the last number of years.

The Principle of Exhaustion

As discussed in our previous blog, one of the key legal concepts in this area is the principle of exhaustion.

In broad terms, the principle of exhaustion means that once a genuine branded product has been sold with the brand owner’s permission, the brand owner cannot usually stop that particular item from being resold. This principle is what allows consumers to buy and sell genuine second-hand products, whether through vintage boutiques, consignment stores or online resale platforms.

However, the principle of exhaustion is not a one-size-fits-all dress. It does not give upcyclers carte blanche to fashion branded goods however they like. A brand owner may still object where there is a legitimate reason to do so, particularly if the original product has been materially altered after its first sale. This could include physical changes to the product itself, such as repackaging, relabelling or substantial modification. It can also extend to situations where the way the product is marketed or presented damages the image or reputation associated with the brand.

The key question is therefore whether the upcycler is simply reselling a genuine branded product with a few alterations, or whether they have effectively created a new product that continues to trade on a brand’s goodwill and reputation.

Recent Decisions

Since our last blog post on upcycling, courts around the world have continued to tailor the limits of upcycling.

In January 2024, a Swiss Court considered the customisation of Rolex watches. In that case, the court drew an important distinction between modifying a watch at the request of its owner and selling modified watches as a business, and ruled that private customisation was generally acceptable, but that the commercial sale of modified Rolex watches violated Rolex’s intellectual property rights.

In April 2025, a French court considered denim jackets that were made using pieces of genuine Hermès scarves. The upcycler argued that artistic freedom and environmental considerations should outweigh Hermès’s intellectual property rights. The court disagreed, finding that the scarves already had value on the resale market and that the project was driven more by commercial gain and free-riding on Hermès’ reputation, than by genuine sustainability pursuits. The decision highlights an important point: not every upcycled product is necessarily providing consumers a greener wardrobe.

More recently, in May 2026 another French court ruled against an upcycling business that used Chanel branding on upcycled Chanel products. Although the business included its own branding and disclaimers on its website to reduce the likelihood of any confusion or association with Chanel, the court found that consumers could still affiliate the products with Chanel, given that the use of Chanel’s famous marks were displayed on the most visible parts of the products.

Briffa Comment

A common thread now appears to be emerging. Once branded products are significantly altered and transformed into new commercial products, brand owners are increasingly able to fashion a strong case against their sale. In other words, there seems to be significant difference between giving a product a new lease of life and creating something that is effectively a new product dressed in the reputation of an existing brand.

For upcycling businesses, the challenge is to thread the needle between sustainability, legitimate creativity and brand protection. In short, while upcycling can be sustainable and on-trend, businesses should be careful not to assume that every redesign is legally ready-to-wear.

If you are an upcycler and you would like advice on the potential risks, or if you are a brand owner and you would like advice on your options regarding possible infringement, please do not hesitate to get in touch with us at info@briffa.com or call us on 0207 096 2779 and one of our specialist IP lawyers will be happy to assist.