RE-STITCHING THE SEAMS: INTELLECTUAL PROPERTY LAW AND SUSTAINABILITY IN FASHION

Neetika Gandhi
1 day ago
6 min read

As the modern fashion industry's conversation shifts from a linear "make-dispose" model to a circular "reduce-reuse-recycle" one, it presents a complex legal challenge for existing Intellectual Property (IP) laws, which were designed for the traditional market. While sustainability initiatives like upcycling, material innovation, and waste reduction are crucial, they often collide with a brand's existing IP rights, creating a dilemma that requires careful consideration.

A Two-Faced Quandary

The very basis of IP law is to grant creators and innovators exclusive rights to their works. For the fashion industry, this translates into copyright on artistic fabric prints, design rights on unique garment shapes, and trademarks on logos and brand names. These rights are essential for preventing counterfeiting and protecting a brand's goodwill. However, in the pursuit of a circular economy, these rights can create unavoidable friction.

The circular fashion model is built on extending a garment's life beyond its first owner. This can involve repairing, upcycling, renting, reselling, or fibre-to-fibre recycling. Each practice can inadvertently create an IP issue. For example, a third-party artisan who uses a branded t-shirt to create a patchwork bag could face a trademark infringement lawsuit. A resale platform might be accused of diluting a brand's luxury image by selling its products at a discount. The core of the issue lies in the brand owner's desire for control and the circular economy's need for flexibility and free movement of goods.

The First Sale Doctrine

First Sale Doctrine is a well-established principle in IP law that restricts the rights of brand owners over the subsequent distribution of a lawfully made copy of their work. The legal purchaser of such goods is then free to resell, lend, or give away that item without the owner's permission. In India, this doctrine is enshrined in Section 30(3) of the Trademarks Act, 1999 [1] and Section 14(a)(ii) of the Copyright Act, 1957 [2].

However, the application of this doctrine becomes murky when a product isn't just resold but modified, especially when it is upcycled or repurposed by transforming discarded materials into new items of higher value. If the upcycled product includes elements of the original branded product, it may lead to infringement lawsuits. Brands often argue that altering their goods creates a new product that can confuse consumers about its source or quality, thereby infringing on their rights.

A clear example of this conflict is the case of Chanel, Inc. v. Shiver + Duke [3]. Chanel filed a lawsuit in a New York District Court against Shiver + Duke, a jewellery company, accusing it of misappropriating its iconic CC monogram. Shiver + Duke purchased authentic Chanel buttons bearing the CC monogram and repurposed them into costume jewellery. Chanel argued that the defendant had used buttons not intended for use other than on authorised Chanel clothing. They contended that the commercial interest in Shiver + Duke's jewellery was based on the use of Chanel's iconic trademark to promote and market the jewellery. This act, they argued, could cause consumer confusion and tarnish Chanel's brand reputation by creating an unauthorised product. Though the case was ultimately settled out of court, it highlighted the tension between a brand's exclusive IP rights and the growing creative upcycling movement. The core question remained: Does the first sale doctrine protect the sale of a modified, authentic product, or does the modification itself constitute a new act of infringement?

Designs and Functional Parts

In India, the aesthetic features of an article, such as its shape, pattern, or configuration are protected under the Designs Act, 2000. However, if a design is deemed "functional" or serves a purpose beyond aesthetics, it may lose its protection. This distinction may create a problem for sustainable “modular” fashion. A new design for a modular garment that can be easily deconstructed for repair or recycling might be considered functional, thereby losing design protection. Similarly, a new fabric weave designed for maximum durability and biodegradability might fall under the purview of patents rather than design law, which can be a more complex and time-consuming process for a fast-paced industry.

GANNI’s[4] and Trent Retail’s[5] commitment to sustainability

To understand how brands are treading the sustainability path, we may look at the measures taken by the Danish brand GANNI and India’s well-known fashion and lifestyle company Trent Retail.

GANNI’s sustainability vision is based on the pillars of social impact, climate action and biodiversity, materials and innovation and circularity. As per the GANNI’s 2024 responsibility report 84% of all the materials used in their products were classified as “Preferred Materials” (organic or recycled materials). Further, the "Fabrics of the Future" program is a testament to its commitment to innovation. The brand is actively phasing out conventional materials and investing in next-gen textiles like CIRCULOSE (made from recovered textile waste)[6], Oleatex[7], PELINOVA[8], and Tex2Tex[9]. An interesting move by the brand has been a 4 year off-take agreement with cycora (a fiber-to-fiber recycled polyester)[10]. By entering into an off-take agreement, the brand has committed to purchase a specific amount of the innovative material before it has been produced, ensuring the accessibility of the material for the brand and at the same time a steady revenue stream for the innovator.

Further, GANNI's commitment to circularity extends to its business models and recycling efforts. Under Designed for Circularity, the brand aims at designing garments that are built to last by focusing on designing for longevity, selecting high-quality preferred materials that are durable and can stand the test of time. The brand has also prioritised resale and repair to extend their products’ lives. Their in-store resale model at POSTMODERN archive stores has seen a significant increase in consumer engagement, giving thousands of pre-loved items a second life. Similarly, their partnership with Sojo for repairs and alterations has been highly successful. In 2024, GANNI also partnered with UK-Based, the Renewal Workshop to repair and extend the life of their e-commerce returns.

Coming to India, Trent Retail has introduced LiveGood, a responsible product label for apparels. LiveGood label garments are made from fibres which are traceable and responsibly sourced. Suppliers must have zero active non-compliances across Sedex Members Ethical Trade Audit (SMETA) 4-Pillars and must incorporate renewable energy sources or water-efficient practices in their production plants. As a member of the Better Cotton Initiative, Trent has initiated the use of fabric made from BCI cotton and encourages the use of recycled polyester from post-consumer and post-industrial recycled plastic [11].

The Way Forward

As the fashion industry is at the cusp of a circular revolution, the existing legal measures must be adapted to address the possible areas of conflict and support sustainable practices. A few measures that may be employed are:

The First Sale Doctrine should be clarified to address the issue of modification and upcycling. The law should specify under what circumstances the alteration of a product constitutes an infringing work versus a permissible act of post-purchase use. A clear distinction can be made between minor alterations (which should be protected) and those that are likely to cause consumer confusion about the product’s origin.
A clear legal pathway should be provided for brands to engage in resale and repair. This could include creating legal "safe harbours" for authorised resale partners or providing guidance on how brands can work with third-party upcyclers without losing control of their IP.
A sector-led certification system could be introduced for recycled products and low-impact materials, audited by independent bodies. This would enhance customer faith in these products and encourage them to purchase environmentally conscious items.

Conclusion

The journey towards a sustainable fashion industry is complex and requires a delicate balance between commercial interests and environmental responsibilities. The traditional application of IP laws, while essential for protecting brand integrity, cannot become a roadblock to a cleaner, more responsible future. By embracing a nuanced approach that clarifies the first sale doctrine for a circular world, we must endeavour to weave a new thread of jurisprudence that supports both creativity and sustainability.