Is Upcycling Legal? Make Sure You Know What You’re Doing


So upcycling is an awesome hobby to have, and it can be a lot of fun. But is what you’re doing with upcycling legal?

Upcycling items you own for private use is legal. However, when you alter something with the intention to sell it for profit, you can get in trouble with the law if you don’t use your own brand name for the product or make it unclear whether the product is altered.

Wow! Okay, so there’s a lot to unpack there. Let’s get into it.

Disclaimer

First, it’s important that I start off with a disclaimer. I am not an attorney, nor am I a law expert in any way. All of the information you will read in this blog post came from resources I researched on the internet.

I believe my findings to be true, but I cannot guarantee their accuracy. You should always do your own legal research and consult an attorney before making decisions that could have a legal impact.

Thank you. Now that that’s out of the way, let’s dive into what you came here to read in the first place.

Use Your Own Brand Name

As mentioned before, it’s legal to upcycle just about anything for your own personal use. You own the item and you can do with it as you please. This allows you to take a glass jar and upcycle it into a candle–or whatever you want to do.

This mentality protects you and your property from Copyright and Trademark owners from coming after you and what you own.

However, the waters can get a little murky when you start to sell items you upcycle for profit. The main question is, is the product your’s or another brand’s? Let’s look at an example.

Let’s say you own a Nike sweater, it’s old and has a stain on the sleeve, but most of it is in really good condition. So you turn that sweater into a bag that still has the Nike logo on it.

You like it so much, you think you can sell it. So you set up an eBay account with the brand name “UpcyclePacks,” and you list it online.

Well, is it a Nike backpack or an UpcyclePacks backpack? This is where you can get into legal trouble.

At first thought, you may think it’s best you say it’s Nike’s since they own the logo. But that’s actually not the case.

Once you alter a product you own (through upcycling or otherwise) the product has changed, which makes it YOUR product, not the original brand’s. You just made it with the materials that were available to you.

You can imagine how confusing it would be if you upcycled a product with materials from two brands and tried to credit them both.

The long and the short of it is, if you upcycle a product and then sell it, you must claim the product as your own creation. In fact, before you sell the product, you need to remove any tags that say it belongs to another brand. So if you end up leaving the collar of a shirt intact as you make a new product, you need to remove the collar tag before you sell the new product.

If you don’t, you can get into legal trouble. And many an upcycler has.

Keep it simple: If you made it, make it yours.

Using the Term “Alter” Instead of “Upcycle”

This is kind of a big deal, and attorneys will probably want you to use this term when listing your product online or in a store. The term “upcycle” is technically not a legal term, which means that if you get in trouble and say “it’s a product I upcycled,” it probably doesn’t mean anything.

Instead, the term to use, especially when selling online is “altered.” You can also use “upcycled,” if you want, you just also have to make it clear that the item is altered from the original state it began in.

In other words, by law, you aren’t upcycling things, you’re altering them. And if you can clearly state that you are or have altered the product in question, you should be safe from any copyright or trademark infringements.

This also makes sense because you don’t want people to think that your upcycled item is actually an item Nike designed. They supplied the fabric, but you altered it to your design. Again, the term “alter” is your legal shield.

After all, you do want to take credit for the product. You made it.

The Goal is to Eliminate Confusion

The reason behind all this legal stuff is really just to eliminate confusion. Brands, both those whose trademarks you use and your own brand, want to maintain brand integrity.

It’s important that Nike makes Nike products so people know they can get a certain kind of quality and style when they see the swoosh. By the same token, you want people to know that the product they’re purchasing from you was made by you. That way you can establish a brand for yourself.

By confusing who made what product, it dilutes both brands. People aren’t sure what they can expect from Nike, and you don’t get the recognition for creating the product.

And it’s this kind of thing that upsets brands. Your small operations might not pose a threat to any one major brand, but there are a lot of upcyclers out there, and you can imagine what kind of impact it could have if there were a bunch of upcycled products being sold on Etsy or eBay under the brand of the materials they were made from instead of the brand that made the end product.

That’s why the laws surrounding this sort of issue are designed to make things as clear as possible to the customer. You remove tags, claim the product as your own, and give other credit where it is due. All of that so the customer knows exactly what they’re getting.

And if you do that, you should be covered.

Gauging the Risk You’re Willing to Take

As stated before, I’m not an attorney, and I’m not even an engaged student of the law. So I’m not the kind of guy you’d want to bet the farm on when it comes to legal advice. I did, however, try and deliver the most accurate content I could.

It all comes down to how much risk you’re willing to take. If you’re really small and you don’t yet have the funds to hire an attorney, maybe you just want to stay away from trademarked products in general.

Or, maybe, because you’re that small, you don’t feel like anything will happen, so you’re willing to take the risk and make the trademarked upcycle products. That’s all a personal decision.

I will mention that it’s expensive for brands to pursue things legally. As in, it costs them money to do it (as well as you). And if you’re a small brand, they might know that even if they win a legal battle, they won’t get much from you.

So brands like to resolve things without legal complications when possible. And it’s likely that if you’re in violation of trademark or copyright law, they will send a cease and desist letter to you before they take any further legal action.

If that happens, I would do what the letter says. It’s up to you, but I wouldn’t want to get in a legal battle with a major brand that owns a trademark I’m using.

Again, this all comes back to the risks of using trademarks for items you sell. There isn’t any risk in items you don’t sell but instead keep yourself.

Resources

Below are the links I used in my research. You can take a look yourself:

http://lawontherunway.com/blog/top-3-legal-concerns-of-upcycle-fashion-labeling/

https://www.artslaw.com.au/article/upcycling-in-fashion-and-staying-legal/

https://www.avvo.com/legal-answers/can-i-legally-upcycle-clothing-and-accessories-by–1906209.html

https://www.avvo.com/legal-answers/it-is-an-infringement-to-upcycle-then-resell-a-pro-528839.html

https://www.avvo.com/legal-answers/does-first-sale-doctrine-apply-if-i-upcycle-clothi-3246687.html

https://www.legaljunkies.com/showthread.php?t=54942

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