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How Fashion Brands Can Safegurd Their IP on the Recommerce Market


The fashion business is responsible for approximately 10 percent of global greenhouse gas emissions, but consumers are placing a greater emphasis on responsible shopping practices. This is especially true for younger consumers, the majority of whom are willing to pay extra for sustainable products, highlighting the importance of sustainable fashion and transparency in the coming years.

Consumers are not the only ones demanding carbon-neutral production. Environmental, social, and governance measures that include green production into global processes are being pushed by corporate boards. In this climate, resellers and brands can limit intellectual property risks through various means, including the assistance of legal advice.

Recycling Fashion

This emphasis on sustainability has increased the resale or recommerce industry, which decreases clothing waste and lengthens garment lifecycles, so contributing to the circular economy. The resale sector is currently worth $36 billion, and it is anticipated that by 2023, resale apparel would comprise 27% of customers’ closets. Luxury labels, who have traditionally been wary of resale, have also embraced recommerce.

Resale presents authentication difficulties for resellers, brands, and their intellectual property counsel. Despite the fact that trademark owners often have no control over the resale of their original and unaltered items, failing to enforce against counterfeits could result in the dilution or loss of trademark rights. Counterfeits can present resellers with considerable concerns, including liability for infringement and potentially shareholder lawsuits.

Collaboration between retailers and resellers

Some brands have formed their own resale programs to suit consumer demand. Patagonia, Eileen Fisher, lululemon, and Levi’s, for instance, allow shoppers to sell back, trade in, and/or buy gently worn clothing.

Brands can also improve their sustainability KPIs while decreasing infringement risk by forming partnerships with recommerce businesses. For years, Gucci, Burberry, and Stella McCartney have partnered with The RealReal, a prominent reseller.

Such agreements enable brands to engage in the process of product authentication, which helps prevent brand dilution while allowing them to reap the advantages of the circular economy. Obviously, these collaborations also enhance the credibility and dependability of resellers.

Utilizing Blockchain to Fight Counterfeit

To combat counterfeits, brands are also utilizing blockchain and non-fungible tokens (NFTs). A blockchain, which is an immutable digital ledger that captures and tracks information securely and cannot be altered, is a potential method for combating counterfeits.

NFTs, which are unique blockchain-based assets, can be tied to actual objects, allowing them to distinguish between authentic and counterfeit products. Arianee, a significant player in this industry, claims to offer “NFT digital passports for luxury goods” that contain digital service history and repair information.

Luxury goods firm LVMH’s Aura Blockchain Consortium also gives out digital certificates of authenticity that include information about where the products come from and how they affect the environment. Digital passports often come with smart tags that can be attached. These tags use radiofrequency identification (RFID), quick response (QR) codes, or near-field communication to communicate with the passport (NFC). Digital passports could help stop fakes from being sold on the second-hand market, which could help protect brands and build consumer trust.

Making deals and getting registered

Intellectual property counsel can assist brands navigate the recommerce landscape in a number of ways. They can work out contracts that keep brands safe when they work with third-party recommerce retailers.

With their knowledge, they may be able to help set up rules for how brand owners’ intellectual property should be used, as well as authentication processes for products, to make sure that brands are well protected and to stop people from doing things that dilute or tarnish their intellectual property.

Counsel can negotiate licenses for blockchain authentication technology and brand passports. They can do global trademark clearance lookups and filings for the program names, taglines, and other branding that goes along with in-house recommerce programs. They can also coordinate these searches and filings.

Companies should also hire lawyers to help them come up with complete enforcement programs and strategies to deal with counterfeits and other violations on recommerce sites. Most of the time, these strategies include online and offline monitoring programs, ways to keep track of evidence, and ways to deal with fakes in both informal and formal ways, including through letter campaigns, negotiations with recommerce retailers, take-down requests, and lawsuits.

Lastly, IP counsel can make sure that all trademarks, such as proprietary trademarks, logos, and trade dress, are registered and protected for current or legacy brands. This will assist brands’ partnerships, licensing, and enforcement positions.

Consumers are searching for sustainable, eco-friendly products more and more, so fashion brands are getting into the recommerce market to meet the demand. By using trusted IP counsel, brands can improve their metrics for sustainability, keep their brands’ integrity, and fight counterfeits.

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