Upcycling and Intellectual Property: what precautions should be taken? 

Is it truly possible to do whatever you want with the original products? 

The answer is no! 

Without the consent of the rights holder, any act of commercialization involving a modified or altered original product could constitute infringement. 

As such, a new product can be considered an infringement if: 

• The original ("old") product is protected by IP rights (such as trademarks, designs, or copyright). 

• The new product—an altered or modified version of the original—is commercialized without the consent of the rights holder. 

Furthermore, upcycling may also be deemed an unfair commercial practice if it: 

• Misleads consumers, creating confusion regarding the product’s origin, essential qualities, accessories, or composition (a deceptive commercial practice). 

• Enables sellers to unfairly benefit from  human or financial investments,  know-how, and reputation of a brand without incurring any costs (parasitism). 

What precautions should you take? 

Before any transformation, you must verify whether the product you intend to modify is protected by one or more IP rights and assess whether your intended modification infringes those rights. 

While trademarks and designs are registered rights in France, remember that copyright also protects any original creation, with no need for registration with the INPI or other authorities. 

In most cases, the reuse of an original  trademark or logo on a transformed product is prohibited without the rights holder’s consent. 

To avoid conflicts, licensing agreements can be negotiated with IP rights holders, offering a potential solution to challenges like France’s ban on the destruction of unsold textiles (effective since January 1, 2022). 

What about the future? 

Upcycling is a planet-friendly activity and represents a significant challenge to be balanced against IP rights. 

Rights holders are increasingly aware of this issue and are adapting their processes, often communicating about measures they are taking regarding sourcing, production cycles, and the reuse of their products. 

Indeed, IP law has already evolved to limit the rights of design holders for repair purposes, despite the economic impact on industries like automotive manufacturing. 

Time will tell whether upcycling itself will “recycle” the legal landscape of intellectual property!