This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.
The rise of wearable technology
It is clear to all that wearable technology – personal accessories or clothing with embedded digital technology – is a huge growth market. We're all aware of wearable tech accessories from the Apple Watch to the Jawbone UP fitness tracker. Now, even high-end designers are collaborating with tech companies and celebrities to create products, such as Gucci and Will.I.Am's smart band and Tag Heuer, Google and Intel's Android smartwatch. As technology advances we are now witnessing much more innovative uses of wearable tech. For example, just last week, Ralph Lauren launched its tech-embedded sports shirt at the U.S. Open tennis championships, featuring knitted-in sensors to read people’s biometrics, including heartbeat and respiration. The message here is that gone are the days where wearable tech meant clunky, gimmicky accessories. Now, wearable tech means well-designed, functional and aesthetically desirable products.
As the technology evolves and becomes more prevalent, the legal issues surrounding the resulting products become more complex. The product and any related services should be viewed as consisting of interlocking intellectual rights. There are also important data protection and privacy issues to address, particularly given that the collection and dissemination of personal information is a typical aspect of wearable technology.
Some relevant considerations are:
How will the product be branded?
The standard considerations of conducting trade mark searches and filing trade mark applications in relevant jurisdictions of course apply.
Co-branding of products is an additional consideration. It is prevalent for technology companies to partner with a fashion houses. The right choice of partner is essential, as is the related agreement. For example, there needs to be a contractual framework to provide for the continuation of the agreement (if things go well) and for the end of the relationship (if the arrangement is unsuccessful).
Will the product collect and process personal data?
Most wearable technology will involve the collection and processing of personal data and this is a key issue for providers. An understanding of the obligations imposed by data privacy laws is vital and suitable data protection policies must be put in place. It is advisable to conduct a data privacy review of the business model at the outset. Increasingly, customers value companies which take robust measures to protect personal data. ‘Privacy by design’, where data protection is at the heart of a company’s business, is an attractive quality which should be highlighted to customers in marketing. Additionally, personal data collected by wearable health and fitness technology should be subject to extra safeguards, due to the sensitive nature of that data.
Is there a related app or web platform?
Most wearable technology will require an app or web platform to support its functions. Companies need to make sure that they have all of the rights (usually copyright in the content and source code) to their app (see our previous blog posts Protect My App! Parts 1 and 2 here and here for more information).
Are there any protectable designs in the product?
Designs can protect features such as shapes. Designs are often relied on by apparel companies to protect items (or parts of items). Given that wearable technology may involve collaborations with fashion brands, designs may be a useful tool to protect unique design features. If a product or elements of it are protectable, they should be registered (either at the UK IPO for UK Registered Designs) or at OHIM (for registered Community designs). Registration will make enforcement easier than relying on unregistered rights if there is a third party infringement.
Is there a patentable invention?
If the product involves new and patentable technology, consideration should be given to patent filings in key jurisdictions. Where there is a plan to use someone else's technology (whether patented or not), it goes without saying that there must be a suitable licence agreement in place, and exclusivity in key markets could give an important competitive advantage.
Non-disclosure agreement
A non-disclosure agreement (NDA) is important during those early-stage negotiations with potential collaborators. Ideas per se are not protectable and an NDA may be a company’s only source of comfort at this time.
