Fashion fad or future trend?
The link between fashion and technology has been long established but the trend of wearable tech is now going mainstream. Much of this technology is designed for style as much as function so key players from both industries are coming together to tap into this important consumer trend. Google have recently announced a tie up with Luxottica who are behind the Ray-Ban and Oakley brands to help style Google Glasses.
It is predicted that by 2016 we will buy nearly 93 million wearable devices a year. Many of these wearable tech products interact with other tech products such as smartphones.
As wearable tech is designed to look cool and be desired by tech-savvy consumers, these products will be sold at a premium price. Manufacturers therefore need to consider the Intellectual Property available to protect their products.
Indeed disputes have already arisen in the area of fitness related wearable tech. In February, Adidas sued Under Armour for infringement of 10 US Patents related to some of Under Armour’s wearable tech and its MapMyFitness app which Under Armour purchased in November 13 for $150 million. As companies in this area fight to outshine one another and make their products more desirable than their competitor’s, these types of battles using Intellectual Property will likely increase.
These are the Intellectual Property areas to consider.
Registered Designs protect the appearance of a particular product or Graphical User Interface (GUI). In electronics, the distinctive appearance of a particular product or of a GUI is sometimes crucial to the success of that product. Indeed, such is the importance of design in electronics, Steve Jobs at Apple considered Jonathan Ive (who designed the iPod, iPhone, iPad and iOS 7 amongst others) as his “spiritual partner at Apple”.
A few years’ ago, Apple filed Registered Designs for the shape of an iPad, iPhone and associated GUIs. Apple then sued Samsung alleging that their Galaxy Tablet range infringed these Designs. These Designs took centre stage in the recent global battle between Apple and Samsung.
In the area of wearable tech, the appearance of a product will be, arguably, even more important. This will be carefully considered by manufacturers. However, in order to protect this distinctive appearance from competitors or copy-cats, manufacturers need to equally consider protecting the appearance using Registered Designs.
Patents protect the way in which a product operates. Specifically, a patent protects the way in which the product solves a technical problem. In the field of wearable technology, there are a number of issues to consider.
Firstly, although it is not possible to use patents to protect the appearance of a product (that is the purpose of Registered Designs), the wearable tech will usually include sensors measuring certain parameters such as a pedometer in a Sony SmartBand or location of the user in a Nike SmartWatch. These sensors may be capable of patent protection if the sensors are improvements over known sensors. For example, if the sensors consume less battery power or are smaller than known sensors.
Secondly, many wearable tech devices, in use, communicate information with other connected devices, such as a smartphone. The smartphone runs a dedicated app, usually produced by the manufacturer, in order to communicate with the wearable device. Therefore, the manufacturer will wish to protect both the wearable tech and separately the app. This will stop other manufacturers copying aspects of the app.
A particular brand name or logo used to market the wearable tech product can be protected as a Trade Mark. Registered Trade Marks ensure that the goodwill and business reputation built up under that brand name or logo is protected in relation to specified goods or services. As wearable tech contains features that relate to both fashion and function, it will be important to ensure that Trade Mark protection is obtained for both aspects. For example, Smart Glasses would require protection both for glasses themselves and the display device technology.
Outside Intellectual Property, there are other legal considerations.
Legal Considerations for the Tech Company
Another legal issue for the tech company to consider is data protection. Most wearable tech has the ability to capture and process personal data about the wearer e.g the wearer’s GPS location, heart rate and number of calories burned. Companies will need to ensure they have adequate procedures and safeguards in place to comply with relevant data protection laws.
Legal Considerations for the Consumer
Wearable tech products also raise potential legal issues regarding the privacy of third parties which may affect how consumers can use such products. Certain wearables such as Google Glasses has the ability to capture third parties who are in the vicinity of the wearer on video. The US press has reported instances of public backlash against Google Glasses wearers with some cafes in the US banning the device.
Companies will need to address consumer’s fears with regard to privacy and data protection. A recent survey conducted by Rackspace showed that 51% of respondents in the UK and US cited privacy concerns as a barrier to the adoption of wearable tech.
However, wearable tech will provide many opportunities for tech companies over the next few years. In order to secure their market share, it is important for tech companies to protect every aspect of their wearable tech; from the appearance of the product, the way in which their product operates to any branding associated with their product.
For FashionCapital by Jonathan Jackson – Partner at D Young & Co
Image courtesy of designer Anbasja Blanken