Deloitte’s Mobile Consumer Survey in 2019 highlighted the rise of wearable technology and set out the expected future growth demonstrating that this is an extremely important and relevant area.

Before we look at what exactly is wearable technology and how brands can protect it, it is important to understand that intellectual property (IP) should be front and centre when considering your wearable technology strategy. In this regard, several fields of IP law (and IP related law) may be relevant to wearable technology that some brands might not be used to encountering, such as patent protection for technical aspects or data protection in respect of data stored, processed and potentially sold by the smart devices. Brand owners and in-house legal teams will know that IP is a key business asset, generating income if sold or licensed. Therefore, it is vital that IP protection is fully considered from the outset.

What is wearable technology and why is this relevant right now?

Wearable technology is defined as a smart electronic device that is worn close to or on the surface of the skin. Smart watches are the dominant player in the world of wearables but the use of technology has grown dramatically to include other areas such as smart fabrics, implants and glasses. Our research found that the average number of smart devices per person increased from 3.8 in 2015 to 6.2 in 2020.

Whilst the world of watches and fashion have been intertwined for years, the meshing of fashion and electronic tech is a much more radical concept. Wearable technology isn’t just about fancy tech functionality; aesthetics and design still have their pull. Wearables have pushed the boundaries far beyond what most of us could ever have imagined and, in the world of watches for example, have disrupted a market that had for many years remained broadly unchanged.

There’s a clear shift towards wearables and that has a bearing on the future of fashion. The current climate has shone a light on the importance of good health and looking after ourselves. Given that the market for health and fitness wearables is relatively new, wearables that assist in tracking health, predominantly through collecting health related data, are on the increase with around 30% of respondents owning a fitness band or smart watch. Wearables that look good whilst doing us good, well they are winning the day.

Given the hugely important role of technology and the early movers, the wearable watch market is dominated by technology focussed businesses rather than the traditional watch brands. Indeed, The Deloitte Swiss Watch Industry Study 2020 found that in 2019, the Apple Watch outsold the entire Swiss watch industry by a huge margin (31 million sales in comparison to 21 million). This further increased by 23% in Q1 2020 (compared to Q1 2019), whereas the Swiss watch exports for the same period declined by 23%. This demonstrates the ever-growing market in wearable technology, and particularly smart watches.

But the wearable technology market isn’t just limited to smart watches, think clothing that responds to body heat or the weather, smart sports shoes that can self-lace or tell users when they are at their destination, or even cosmetic wearable tech that alert users to UV exposure. It seems that anything is possible.

Who are wearables relevant to?

To anyone operating in the luxury retail sector, wearable technology is hugely important. Any business looking to build their digital platform needs to be thinking about how they might be able to leverage third party wearables to increase customer engagement.

Returning to our watch example, if you’ve invested in an app to support your business, have you thought about a smartwatch app? If not, why not, are you missing a trick?

If we’re talking handbags and heels, have you thought about the possibility of an augmented reality app to integrate with smart glasses so that potential customers can visualise how the heels might look on their feet or the bag in their hands?  

How can brands protect wearable technology?

As highlighted, there are several fields of law relevant to wearable technology:

Designs

A design protects the shape and visual appearance of an article that makes the product desirable and different. You can register the look of a product including appearance, shape, configuration, patterns and decorations as a design, be that the whole of a product or part of a product. For anyone producing wearable products, you’ll want to think about whether you’d want to register the appearance of the product.

However, you can also protect graphical user interfaces (GUIs) as designs and this therefore has much wider relevance as it applies to anyone that might want to release an app for wearables, rather than just a producer of wearables themselves. If you have an e-commerce app for example, would you want to integrate that with a smartphone app, and if so, would you want to try and protect the GUI?

Designs are a very quick, effective and low-cost IP right that are worthwhile having in your arsenal.

As the test for registered design infringement is arguably harder than the test for trade mark infringement – the informed user (designs) v the average consumer (trade marks) – you may want to consider trade mark protection in tandem with design protection (for example 3D trade marks as discussed below).

Trade Marks

A trade mark identifies your business as the only source of a product under that brand. As well as trade marking words or logos, you can also register shapes, patterns and 3D marks.

As mentioned above, you may want to consider 3D trade marks as a complement to design protection. The immediate advantage of a 3D trade mark registration is in its unlimited renewal (as with any UK or EU trade mark and provided that renewal fees are paid every 10 years) as opposed to the maximum 25 year life span of UK and EU registered designs. This is particularly applicable to luxury brands creating iconic and desirable products which stand the test of time.

When seeking trade mark protection, thought needs to be given to future use of the mark to ensure that the specification provides sufficient cover both now and in the future (being mindful of the requirement to have an intention to use in the UK and elsewhere). For example, if the wearable technology is a watch, protection should be sought for both Class 9 (tech goods) and Class 14 (watches). If the wearable technology is within the fabric of clothing, you would want to consider Class 9 (software related goods), as well as the standard Class 24 (fabrics) and 25 (clothing) goods.

Trade marks are often the most obvious IP right to the general consumer – it is what allows a brand to stand out from the competition. This is a very valuable asset and care should be taken to ensure that your brand is protected. It is also a very effective tool in preventing consumer confusion in respect of identical or similar brands in the marketplace – it is much easier to show a registration certificate to a third party than rely on unregistered rights in a mark.

Patents

Patents are probably not the first thing to spring to mind when thinking about the world of fashion. However, stepping into the field of wearables makes patent protection much more relevant. If the wearable features patentable technology, then obtaining the exclusive right to commercialise that technology for 20 years could prove very valuable.

Our searches of US patent filings show a huge increase in patent applications and grant in respect of “wearables” and “smartwatches”.

If you’re developing tech that is new and involves an inventive step (so not just a simple or obvious modification to something that already exists), it’s worth thinking about patents as well.

Data protection 

Whilst not strictly IP related, any business thinking about launching a wearable tech product needs to consider any additional obligations from a data protection perspective. Failing to do so could result in the business processing sensitive personal health related data and appropriate safeguards need to be put in place. 

What are the key considerations for brand owners?

In terms of what this means for IP, it is not possible, or advisable, to focus on one area of IP only. Instead, an awareness and collaboration of all aspects of IP is required as there may be patentable material, designs, trade marks and/or data protection issues.

Before building your wearable technology and associated brand, check for existing designs, trade marks and patents to ensure that you aren’t going to infringe earlier rights. Assuming these are clear, look at your IP and start to build your portfolio protection.

Trade mark and design registrations can be hugely valuable assets when it comes to clearing the market of counterfeits or copycats. These assets allow you to make use of online market place take down process which provide a quick and cost effective option for market clearing. This approach, partnered with an AI image recognition tool such as Deloitte's Dupe Killer, can be used to swiftly detect and remove any copycat products seeking to take advantage of your valuable designs.  

Another important consideration is the ownership of rights given that wearable technology is often the result of design collaborations and brand tie ups. This needs to be clearly defined at the very start of the relationship to avoid issues at a later date.

And finally, if you’re a digitally minded business with an existing app presence, don’t overlook obtaining appropriate IP protection for any wearable or smartwatch app that has been developed.