Upcycling branded clothing: how far can you go with someone else's trade mark?

Cutting up a branded jacket to make something new is sustainable, but the logo on it can be a problem. Where exhaustion ends and what copyright and design law add.

A denim jacket from a well-known brand, cut open and rebuilt with offcuts from other jackets. Someone else turns a button bearing a famous logo into the pendant of a necklace. Upcycling gives discarded clothing and unsold stock a second life, with creativity and craftsmanship added. The Dutch label Hacked By_, founded by Alexander van Slobbe and Francisco van Benthum, makes new pieces from existing garments and leftover material. Designer Tess van Zalinge used deadstock fabrics from major fashion houses in her 2022 collection Natuurlijk.

Legally, upcycling is less free than it looks. If the trade mark on the original piece stays visible, the trade mark owner can object to the sale, even though you bought the clothing perfectly legitimately. Under Dutch and EU law, trade mark law is usually the first obstacle for upcycling, but copyright and design law can draw a line too. If you’re a brand that sees its own products turning up in someone else’s collection, the last part of this article is for you.

Working on an upcycled collection or do you want to know what you can do about an upcycler? Call 020 675 88 21 or send us a message using the form at the bottom of the page.

Upcycling branded clothing runs into trade mark law first

Once a trade mark owner has put products on the market in the European Economic Area, itself or with its consent, it can no longer stop them from being resold. This is known as exhaustion. A second-hand shop can therefore simply sell a used jacket from a well-known brand. That freedom ends where the trade mark owner has legitimate reasons to oppose further commercialisation, especially where the condition of the goods has been changed or impaired after they were put on the market (Article 15(2) of the EU Trade Mark Regulation; for a Benelux trade mark, Article 2.23(3) of the Benelux Convention on Intellectual Property). Changing the product is exactly what upcycling does.

On 28 May 2024, the interim relief judge at The Hague District Court showed how that plays out in a Dutch case, in interim injunction proceedings brought by LEGO (ECLI:NL:RBDHA:2024:7992, in Dutch). A trader bought genuine LEGO bricks, fitted them with metal ball bearings, printed bricks and minifigures with, among other things, the logo of the Dutch railways and sold the result as model trains. According to the court, this permanently changed the condition of the bricks. LEGO had no control over the quality of that work. The trade mark meanwhile stayed on the bricks, so buyers would link the product to LEGO even after the purchase. The third-party logo also gave the false impression of a connection between LEGO and that third party. The exhaustion defence failed. We wrote about that case earlier in A train replica made of LEGO bricks.

The same test applies to an upcycled garment. A bag cut down into a belt or a jacket with new sleeves is no longer the product the trade mark owner put on the market. As far back as 1995, the German Federal Court of Justice held that bleached and re-dyed Levi’s jeans could not be sold on under that brand.

What your own label or a disclaimer does for upcycled branded clothing

If you remove the trade mark, there is no longer any use of the mark to hold against you. That works well when your own design carries the piece and it no longer looks like the original. A shape mark or a position mark, such as a stripe or a tab in a fixed place, can’t be cut out without changing the garment itself.

Your own label next to the visible trade mark can be enough, but only if it doesn’t lead the public to think there is an economic link between you and the trade mark owner. That follows from the SodaStream judgment of the Court of Justice of the European Union of 27 October 2022, about refilled carbon dioxide bottles with a new label. The Court makes that assessment depend on what appears on the product and the new label and on what is customary in the sector. In fashion that is a tricky test, because brands upcycle themselves, collaborate with designers and release capsule collections with other labels. A buyer will then readily assume a collaboration that doesn’t exist.

A disclaimer on your website usually doesn’t solve it. The Hague court found the disclaimers in the LEGO case too general, because buyers couldn’t tell from them which bricks had been altered and how. Nor did they help against confusion after the purchase, for someone who comes across the product at a fair or online.

In France, the upcycling label Kamad Reworked came unstuck on this twice. On 21 May 2026, the Paris Judicial Court held that jewellery made with Chanel buttons and charms was not resold Chanel goods but new products, to which exhaustion does not apply. On 17 September 2026 the same court ordered the label to pay €920,000 in damages to Louis Vuitton for clothing and accessories made from cut-up Louis Vuitton products. The label had relied on exhaustion, on environmental protection and on freedom of expression and lost on all three. A Dutch court is not bound by those judgments, but they follow the same line as the LEGO judgment in The Hague.

When copyright in a print or design comes into play

Copyright has its own exhaustion rule. Once a copy of a work has been sold in the EEA with the author’s consent, it can be sold on (Dutch Copyright Act, in Dutch). In 2015 the Court of Justice drew a line in Art & Allposters. A company used a chemical process to transfer the image on paper posters onto canvas, leaving behind a blank sheet. According to the Court, replacing the medium in this way can amount to a new reproduction, which needs the author’s consent all over again.

If you cut up a scarf with a protected print and work the pieces into a new dress, the author of the print can rely on that reasoning. Copyright also covers a partial adaptation in modified form that is not itself a new, original work. Since the Mio/konektra judgment of 4 December 2025, the question is whether creative elements of the original have been recognisably taken over. A print that reappears as a patch on a jacket stays recognisable. Of a fabric that disappears in small pieces into a patchwork, often only the colour and texture remain. You can read more about that test under protecting a clothing design.

The designer also keeps moral rights, even if the copyright belongs to the fashion house. Under Article 25 of the Dutch Copyright Act (in Dutch), the author can object to any distortion, mutilation or other impairment of the work that could harm the author’s honour or reputation. With a unique piece or a recognisable couture piece, that can come into play.

If you want your upcycling to comment on a brand or on the fashion industry, the parody exception may give you some room. Article 18b of the Dutch Copyright Act allows a work to be used for caricature, parody or pastiche, provided the use is in line with what is reasonably acceptable under the norms of society. For a parody, the Court of Justice requires that the existing work is evoked with noticeable differences and that the result is an expression of humour or mockery (Deckmyn). A sustainability story on its own doesn’t make a piece a parody. The EU Trade Mark Regulation has no parody exception of its own. Our article on a carnival hit set to an ABBA melody shows how the parody exception played out in a music case.

Design law leaves room for parody with an EU design, not with a Benelux design

If the original piece is a registered design or protected as an unregistered EU design, the design holder can prohibit the making and selling of a product in which the design is incorporated. With upcycling, part of the original design often stays in place. Since the reform of EU design law, the EU Design Regulation names two exceptions that can help an upcycler. Use for the purpose of referring to the design holder’s product is allowed, as is use for comment, critique or parody (Article 20(1)(d) and (e)). Both apply only where the use is compatible with fair trade practice and doesn’t unduly prejudice the normal exploitation of the design. Benelux design law doesn’t have these two exceptions.

Design law has an exhaustion rule too. Unlike the EU Trade Mark Regulation, the EU Design Regulation makes no exception for a product that has been altered after it was sold. The Regulation leaves open whether a heavily reworked garment is still the product the design holder put on the market.

If you’re only working for yourself, none of this applies. Trade mark law only prohibits use in the course of trade and the rights in an EU design don’t extend to acts done privately and for non-commercial purposes.

Customising clothing for a client or selling upcycled pieces yourself

Between rebuilding your own jacket and selling a collection sits the business that alters a client’s clothing on request. The Swiss Federal Supreme Court drew that distinction on 19 January 2024 in a case brought by Rolex against a company that customised watches (4A_171/2023). According to that court, a business does not infringe the trade mark when it alters a client’s watch on request and returns it to that client. Buying branded watches itself, altering them and selling them with the trade mark on them does infringe. A Dutch court isn’t bound by that judgment, but the distinction is still useful for your business model, because when you work on the owner’s instructions you are selling a service, not putting a branded product on the market.

Upcycling and the new rules on textile waste and unsold clothing

Upcycling isn’t growing only because it suits a sustainable collection. Since 1 July 2023, producers of new clothing in the Netherlands have had to ensure that a share of what they put on the market is reused or recycled, at least 55% by weight in 2026 (Dutch Decree on extended producer responsibility for textiles, in Dutch). Since 19 July 2026, large companies may no longer destroy unsold clothing and footwear. For medium-sized companies the ban applies from 19 July 2030 (Ecodesign Regulation). Brands therefore have to do something with their surplus stock, which makes an upcycler a serious buyer.

Upcyclers are also outside the EU extended producer responsibility for textiles, in so far as they put products on the market made from used or discarded clothing (Directive (EU) 2025/1892). The Netherlands has to transpose those rules by 17 June 2027 at the latest. None of this changes the rights of the trade mark owner.

Taking action as a brand against upcycling of your own products

If you see your own products in someone else’s collection, start by looking at what happens to your trade mark. If your logo is still visible on a piece that has been materially altered, the LEGO judgment is on your side. Provenance matters too. In the Chanel case, the French label couldn’t show that the buttons came from genuine Chanel products, so the exhaustion defence failed before the court even got to the alterations. Record what you see, with dates: screenshots of the webshop, a test purchase and the way the piece is offered for sale.

In the LEGO case, the trade mark owner obtained an injunction that took effect within 48 hours, disclosure of buyers and stock and a recall from professional buyers. Whether you want to go that far is another question. Upcycling has a positive image. If a big brand takes a small designer to court, it can quickly end up in the wrong headlines. A cease-and-desist letter with a reasonable deadline sometimes achieves more, as can an agreement on what the upcycler may do with your trade mark.

If you sell surplus stock to an upcycler yourself, set out in the contract whether labels and logos have to be removed and under what name the new pieces will be sold. Our page on the licence agreement explains how to arrange that kind of use of your trade mark. Under fashion law you’ll find how design, brand and contracts fit together in fashion.

An earlier version of this article appeared in Dutch in January 2023 in the Rechtspraak column of FashionUnited.

Would you like an upcycled collection checked before it goes online or do you see your brand in someone else’s? Call 020 675 88 21 or send us a message using the form below.