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Case Study-Infringement: Does Upcycling Equal Infringement?

On just about a daily basis, I witness infringement in all shapes, sizes, and flavors. One of the must flagrant examples of trademark and copyright infringement is the well-known handbag company who has a foreign company knocking of their designs and selling them on the streets for pennies on the dollar (i.e. “designer purses” being sold on the streets of New York City). Y’all know what I am talking about. In recent years, I have begun seeing these same designer counterfeits being sold in boutique stores. Also, infringement for both the wholesaler and the retailer, yes, the retailer is culpable, too. That’s another article, though.

Above (L-R) Gucci, Coach, and Louis Vuitton logos.

So, what about those companies that purchase an item transforms or takes apart that item and then sells some new product with the purchased components. We see examples of this when we see T-shirts with Lilly Pulitzer fabric or Vera Bradley fabric appliqued letters or monogram. Another example I’ve recently seen are cuffs with Louis Vuitton or Gucci parts of purses affixed to the cuff. Is that permissible? Well, it depends. And the few examples that I provided may render two different results. In the fabric situation, if the fabric was sold on a by yardage basis, then it is conceivable that products would be made to sell from that fabric. Most likely copyright law will control, and the makers could be in a grey area.

The example I would like to focus on is the bracelet with the designer handbag label (i.e. Louis Vuitton, Gucci, Coach, and others). Are they infringing? A big fat, YES! I can see it on your face; you are shocked! Because it is the original, and it is a completely different product. Exactly, you do understand the law. THAT, is exactly why it is infringing. Trademark infringement is defined by likelihood of confusion by the consumer. Would the consumer believe that those products were being produced by Gucci or any of the other brands? Possibly. Furthermore, those products are being sold for substantially less than what the designer products are being sold for, so this is called dilution of the brand infringement. Just another flavor of infringement. Still just as wrong. So check out your social media; you will see it with a whole new set of eyes when you see some of these flash sales and auctions happening. It’s not a matter of will they be caught, it is only a matter of when because these larger brands are very aggressive about policing their brand. Creative BEWARE!

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