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| This dress was made by Mrs. G. R. (Dorothy) Overall of Caldwell, Kansas, in 1959 for the Cotton Bag Sewing Contest |
Dear Rich: Would it be a violation of trademark or copyright law to take an empty livestock feed bag (with the name and/or logo of the company that produced the feed on it, along with usually a picture of an animal), cut it up, and sew it into a reusable grocery tote bag for sale? I have seen these items for sale on platforms like Etsy, but I know Etsy doesn’t filter for IP law violations.
Unfortunately, we can’t give you a green light, only a yellow one. Although we believe you will be fine under copyright law, trademark law is unclear regarding upcycling. On the one hand, anyone can recycle and resell authorized trademark goods under the principle known as trademark exhaustion (or the First Sale doctrine). This allows you to resell trademarked goods in their original form — for example, a used Specialized bicycle or a vintage Gretsch guitar.
Upcycle ≠ Recycle. Upcycled goods — because they deconstruct legitimate goods to create new products — are in a different category than recycled goods. The trademark owner may have a legal gripe if the new products reflect poorly on the brand, if they trigger product liability issues, or if consumers are confused or harmed by the upcycled products. For example, the trademark owner of a distillery may have concerns about a lamp being constructed using its trademarked bottle. Consumers may not believe that the lamp comes from the distillery but the distillery still has the ability to threaten a lawsuit, something you don’t want to deal with.
The real world. Upcycled goods are prevalent on Etsy because they have not yet come to the attention of the trademark owner or because the trademark owner doesn’t believe it is worth pursuing the seller. Based on these “odds,” you may avoid being hassled. You can improve your odds by avoiding the use of the trademark owner’s name in your Etsy text (although that approach may cut into your sales). Keep in mind, though, that even if Etsy does not filter for infringing items, it responds to trademark owner complaints about items that violate its IP policy.
PS Dept. In the 1920s and 1930s, rural women prided themselves on repurposing feedbags as dresses. Once the feedbag companies were aware of this phenomenon, they competed with each other by offering more elaborate dress-friendly bags.