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The Risks of Recycling

In the industrialized world, yesterday's necessities and tedious chores have become today's trends and recreational activities.  The hours that great-grandma spent picking, plucking, preparing, and cooking dinner have become the "slow food" movement.  Living in makeshift shelters far from other humans or even running water is now "camping."  And reusing discarded clothes and other items is one of the manifestations of "sustainable fashion."

Miguel Androver Fall 2000When, exactly, did castoffs become officially cool?  Rewind to 2000-01.  At about the same time that Hollywood starlets (or rather, their stylists) discovered that "vintage" clothing -- previously known as "old" -- could serve as an alternative to 1990s minimalism, a group of emerging designers decided that they could improve on vintage by reworking existing pieces according to their own visions.  Labels like Imitation of Christ, Libertine, and Miguel Adrover sent recycled but sometimes recognizable garments down the runway, to editorial acclaim.  The most prescient of these designers may have been Russell Sage, who called his Fall 2000 collection, "So Sue Me." 

Wait -- how did law get into this?  Recycling is a good thing, right? 

Perhaps not, from the perspective of a trademark owner.  Take a closer look at Miguel Adrover's collection, which includes reused Burberry plaid, Louis Vuitton bags, and even New York Yankees caps.  Then check out Russell Sage's runway, which also featured bits of Burberry in several looks, along with a some Tommy Hilfiger. 

Assuming that neither Miguel nor Russell copied the trademarks, but instead simply acquired and reused trademarked goods, weren't they safe from legal challenge?  And weren't the original goods theirs, bought and paid for, to be used at will?  In other words, doesn't the "first sale doctrine" in trademark, which allows resale of a logoed good, protect against liability for infringement? 

Not necessarily.  The first sale doctrine allows the resale of an unaltered item, like a Burberry raincoat; it doesn't always protect against alteration and commercial distribution.  The idea is that Burberry has a certain standard for the appearance and performance of its coats.  If they're redesigned but still bear Burberry markings, consumers could confuse the altered versions with Burberry originals, thus affecting opinion of the company.  This could be for the better -- after all, Burberry wasn't exactly trendy back in 2000 (and ultimately backed away from suing Adrover) -- but the right to control the trademark still rests with its owner.

Fast forward to the present.  Why does all of this trademark first sale doctrine business matter now?  Well, take a look at the "Prada Ironic Advertisement Wallet," sold yesterday on Etsy.com (and discovered by Fashionista):

The resourceful 17-year-old designer, Lia Saunders, created the wallet from an ad torn out of Vogue and claims to have "successfully usurped the entire silly Brand system."  As Lia's own ad copy states:

The irony is that the product is a wallet.
The owner of this wallet will hold his/her money in this fabulous, handmade wallet with the Prada brand name on it -- but although he/she touts this brand proudly, no money actually went to it.
Instead it goes directly to the lovely maker of the wallet, me. Lia. Irony queen and brilliant anti-consumerism activist.

As an art project or an item for her own use, Lia's wallet would be protected as free expression.  When the wallet is offered for sale a consumer good, however, Lia's claim that she is engaging in protected parody is not as clear.  Prada does, after all, sell wallets, though not for USD $10.  Moreover, Prada is known for its use of unusual materials, including photoprinted fabric.  Are Lia's expressive intent and the handmade appearance of the wallet sufficient to protect her against claims of trademark infringement, given that she's selling her wallets online -- and offering custom versions as well?  Hopefully for Lia and her fellow DIY entrepreneurs, she won't have to find out.

Trademark lovers beware -- the recycling process may crush more than aluminum cans.