The saying goes “one man’s trash is another man’s treasure”. But when can a treasure turn into a liability? This is the prevailing question for many “green” fashion designers who rework articles of clothing or scraps of fabric turning them into new creations for commercial purposes. It’s seemingly an innocent practice. After all, you are recycling fabric, which saves water, gasoline, reduces landfill waste and essentially sustains a healthy environment.
While creating eco-friendly fashion is certainly a model practice, does it violate any laws? Copyright and trademark law both govern this issue, however we will solely focus on the effect of trademarks. Trademark protection extends to a symbol, name, or logo that is used to inform the public of the source of the product. The symbol identifies the brand and compels people to buy the product based on its reputation. It provides an assurance to consumers that the product is of a certain quality and is authentic, which drives them to want to spend more.
In order to prevent a trademark infringement claim, designers need to be aware of two issues that arise from this topic: Transforming and Selling Trademarked Fabric.
Transforming Trademarked Fabric
After fabric is purchased and in your possession you can freely use it subject to certain exceptions. If the fabric contains logos, such as Louis Vuitton’s monograms, or Lilly Pulitzer’s famous colorful prints, then your work maybe subject to an infringement claim. The key is to rework the fabric in a way in which you avoid deceiving consumers about the nature of the relationship with the trademark owner. Consumers should not be confused, thinking that the item that you created is a product from a Louis Vuitton collection. It can harm the value and reputation of the brand, which defeats the purpose of trademark law.
Selling Reworked Fabric
The First Sale Doctrine is a defense used in all forms of intellectual property, including patents, trademarks, and copyrights, that allows purchasers to resell or otherwise dispose of a product without seeking permission from the intellectual property owner. Consignment shops, garage sales, and Internet resellers, such as Ebay, illustrate this concept best. The purpose of the first sale provision is to cut off the trademark owner’s rights after the product is first sold, ensuring that they only get one fee from each product. After receiving the desired value of the product, it limits their rights in order to encourage creativity, which enables the purchaser to use or dispose of the purchased fabric in a way that she sees fit.
The Shift in the Fashion Industry
The fashion industry is more environmentally conscious than its ever been and is making a shift towards repurposing existing fabric and using renewable resources. It has such a grave impact on the environment, through the manufacture of manmade fibers and other synthetic fabrics, that it is imperative that the eco-fashion trend continues. So long as the proper legal guidelines are followed, recycling older fabric is encouraged because it helps to reduce our carbon footprint.
It’s better to prevent an infringement from happening rather than to defend an existing infringement. Before transforming and selling another’s work consider how the fabric is used and whether it identifies the trademark owner. Consult with a trademark attorney in your jurisdiction to ensure that there is no misuse of another’s mark.
Marlandia is one company that has managed to remain environmentally conscious by putting discarded fabric to good use. Founded by Marla Guttman, Marlandia is an exclusive U.S. distributor of Retalhos Cariocas, a fashion house based in Brazil that has pioneered sustainable sourcing techniques to create beautiful one-of-a-kind pieces of apparel, footwear and accessories from discarded fabrics the global fashion industry otherwise dumps in landfills. Their success is manifested in supporting sustainable economic development in Brazil’s slums, which in turn impacts higher quality education, justice, and overall quality of life. The goal of Marlandia and Retalhos Cariocas is three-fold: to provide employment for the promising women living in Brazil’s slum communities through a sustainable monthly income, while also contributing to the country’s overall economic development, and upcycling materials that would otherwise increase Brazil’s notorious landfills. ~ via www.Marlandia.com