Is Upcycling the New IP Infringement?

The Paris Judicial Court's decision of 10 April 2025 set a significant precedent at the intersection between intellectual property (IP) law and the growing trend of upcycling in the fashion industry. This case, involving Hermès and the upcycling brand Atelier R&C, highlights the legal risks associated with unlicensed upcycling activities.

Key takeaways:

The Court adopted  a strict approach in finding that upcycling in the form carried out by Atelier R&C  constituted copyright and trade mark infringement as well as free riding.

While this decision offers limited scope for the development of unlicensed upcycling activities, it may leave room for a different balance to be struck between IP rights holders and participants in the upcycling industry, particularly those genuinely promoting a greener and second-hand-focused fashion sector

The Court's decision:

• Copyright Infringement: The Court held that the transformation of Hermès' iconic silk scarves into jacket embellishments constituted a change of medium, thereby precluding the application of the exhaustion of rights principle. In doing so, it also rejected the argument that artistic or eco-friendly intentions could override  Hermès' copyright, noting that the defendants' commercial objectives and use of new materials (brand new Levi's® jackets) weakened their claims.

• Trade Mark Infringement: The defendants were found to have infringed Hermès' trade marks by prominently displaying the "Hermès" sign on the upcycled jackets, using the trade mark in promotional materials, and also by removing the trade mark from the scarves. It dismissed the defence of trade mark exhaustion, ruling that the material alteration again precluded this exception.

• Unfair Competition (Free Riding): The Court held that Atelier R&C engaged in parasitic behaviour by using Hermès' advertising materials to promote their products, benefiting from Hermès' reputation and investments without authorisation.

Understanding the Implications

This decision underscores the limited scope for unlicensed upcycling activities within the EU. While the Court indirectly acknowledged the potential for balancing IP rights with environmental and artistic considerations, it hinted that such defences should be genuine and central to the upcycling activity. In this case, the Court held that the defendants' use of new Levi's® jackets and their predominantly commercial objectives contradicted their claims of eco-friendliness and artistic freedom.

Conclusion

This case serves as a reminder for businesses in the upcycling industry to tread carefully when incorporating branded materials into their creations. The Court's decision suggests that even well-intentioned initiatives, such as promoting sustainability or artistic expression, may not justify the unauthorised use of copyrighted works or trade marks.

To mitigate risks, upcycling businesses should consider obtaining licences or permissions from the original rights holders. Additionally, they should ensure that their activities genuinely align with eco-friendly or artistic objectives, as courts may scrutinise the authenticity of such claims.