Over the past few years, the environmental toll of the fashion industry has prompted the European Union to adopt measures aimed at fostering circularity and extending product lifecycles. As a result, design methods that repurpose garments otherwise destined for landfill – most notably, upcycling – have gained momentum as both a sustainable and fashionable practice. Yet when upcycled items retain visible brand insignia, they often risk encroaching upon the scope of trade mark protection, triggering infringement claims. This article takes a step back from the already recommended approaches and revisits a more fundamental question: does upcycling even entail ‘use’ of a trade mark in the sense required under EU law? Re-examining the Court of Justice’s case law, the main tenet of this contribution is that several forms of sustainability-oriented upcycling may not reach this threshold, as upcyclers typically do not engage in the kind of active conduct required by the law to qualify as ‘use’. The article thus positions the notion of ‘use’ as a conceptual filter that reconciles trade mark protection with circular-economy objectives. By showing that the existing framework already contains the tools to exclude genuinely sustainable repurposing from infringement – while still capturing parasitic practices – it clarifies how EU trade mark law can reconcile environmental innovation with trade mark owners’ interests and do so without the need for legislative intervention.
Common Market Law Review