Wearable technology has moved from watches, glasses and fitness bands to being integrated into garments, providing greater connectedness and even greater disclosure of personal data. But the fusion of fashion and technology isn’t a seamless one, and multiple legal concerns have arisen over intellectual property and copyright, as well as consumer privacy and security.
According to Sarah Wright, head of trademarks at legal firm Olswang, as a common law jurisdiction, the UK is better equipped than civil law jurisdictions to keep up with rapid changes in technology because the law is re-interpreted on a case by case basis.
“In the UK we are lucky because the law moves as technology moves. It’s definitely one of the reasons why there’s been so much reform in the area of IP, as the law catches up with the way we live our lives today, but inevitably there is always a lag.”
According to Wright, the UK and Community design laws protect both 2D or 3D products so can be used to protect wearable fashion products.
“As well as logos or prints, the shape of an item or structure of a dress can be protected under design rights. That protection isn’t available in the US, where the fashion industry has campaigning for better protection equivalent to the European design regime,” explains Wright.
But some designers aren’t feeling the benefits. Amy Winters, creator of interactive wearable design company, Rainbow Winters, took a step back from managing her company to return to university where she is learning how to protect her designs.
“I wasn’t able to sustain a good living. Even though I was designing new applications, I didn’t necessarily own the IP so I wasn’t able to monetise my ideas,” explains Winters.
“I might have my trade secrets and my suppliers, but my ideas aren’t protected. There are a lot of parties involved in cross collaborations between design and tech. IP infringement is a sensitive topic, no one wants to bring it up. I was developing products very quickly to meet market demand. I might take some off-the-shelf products and reconfigure them into a new format but what’s to stop someone reverse engineering my product,” says Winters.
IP protection
According to Wright, problems arise because there is a poor understanding about the type of IP protection available. Most wearable technology products involve software and as this is not patentable per se in Europe, some think they can’t get patent protection for their technology.
“All software is protected by copyright which stops someone from copying your code, but it won’t deliver the all-encompassing monopoly protection that a patent confers. Although software is excluded from patent protection per se, it is possible to get protection if your software delivers a technical effect. Entrepreneurs need to identify the USP of their product. Is it something in the underlying technology, or are they using existing technology but making the product or the interface appealing, or both, in which case you should think about both patent and design protection,” says Wright.
“Often, designers think if they change two or three things from an existing design, they will escape infringement,” explains Wright. “But that isn’t the legal test, so people often get themselves in hot water. Also because of the unusual mix of skills involved in wearable tech, businesses led by a software developer may understand how software is protected, and those led by fashion designers know about design protection but each may be missing half of the equation”.
Winters believes the input a designer makes to wearable technology isn’t fully recognised yet. “It’s not just about a patent, it’s about protecting know-how. The current thinking in the industry is that technologists invent and designers provide exposure, but designers take care of the human side, customer needs, the user experience. That’s a big part of IP”.
Protecting fashion is difficult
For London-based fashion technology company XO, a change in direction from designing one-off creations to dressing the wider public has brought a host of new legal and ethical challenges to navigate.
“Protecting fashion is difficult”, admits Ben Males, chief technology officer and co-founder of XO. “Up until now the complexity of our designs and their one-off nature, like the flying dress for Lady Gaga, have protected them. The best way to protect a piece of technology is a patent. The development process for technology provides all the information you need to file a patent. But it gets interesting when you start to build multiples.
“In 2014 we worked with Saatchi and Saatchi to build 2,300 wristbands that measured peoples’ emotions using changes in skin resistance. It was the first time we had to consider that these products would end up in the public domain. So we deliberately designed them to stop working outside the auditorium. It was our way of controlling that product”, explains Males.
But there are other concerns that are harder to manage. For wearables to catch on, it is critical that the potential risk of constant data-sharing is addressed and regulated. Though wearables have been around for years, companies are still struggling to find definitive guidelines on how to proceed with care.
“Collecting information is a grey area,” says Males. “In 2014 there weren’t any guidelines, and there still aren’t. When we start linking the emotional sensing in our clothes to things like location and friend groups it will start being tricky.”
But for Males, the user experience outweighs concerns over the way information is collected and companies must embrace the changing expectation of the consumer.
“The problem with traditional digital methods of collecting data is a lot of it is collected behind the scenes. If you aren’t, or even if you are tech savvy, it’s difficult to really appreciate what’s happening in a digital sphere. But the nice thing about wearables is that you can take them off,” says Males. “Businesses need to keep client information securely and be as transparent as possible. In the end the consumer decides whether they’re happy to make that transaction.”
Wright says the law is responding to consumer concern about the explosion of data including as a result of wearables. “Up until now if a company breached the Data Protection legislation, they might get a wrap on the knuckles but were unlikely to be subject to a financial penalty.
However the latest European reforms likely to enter into force in 2017 will enable regulators to dish fines of up to 5% of global annual turnover. As a result businesses that deal in data are taking the regulations more seriously. Analysts predict by the end of 2016 we’ll buy more smart clothes than any other kind of wearable technology. But however it moves from the lab to the lover of wearable fashion, it’s clear that cooperation within the industry needs to be as cutting edge as the products it creates.
Olivia Mcgill, Slack Communications
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