Fashion and technology have long been on a collision course and, like so much, the pandemic has accelerated things in a dramatic and life altering way.
It’s no secret that the fashion sector has been particularly badly hit by Covid. The saving grace for many brands has been the investment that it has made in the digital and technology business. It’s fair to say that businesses with a strong ecommerce offering have fared much better than the competition - particularly if they sell a lot of athleisure! Technology has been essential to the pandemic both in terms of enabling remote working for many (but by no means all) and for providing schooling, a social life, medical advice, health tracking and much more. Much of this may have potential game changing effects on the fashion industry.
The most common fashion/tech overlaps tend to relate to fitness, social tracking and mood. Pre pandemic, the fashion technology that made headlines was focused on variations of fitness tracking devices such as Fitbit, Apple Watch. There have long been more fashion oriented products such as those from Bellabeat and Ringly both of which sell jewellery activity and mood trackers and can provide notifications when someone important gets in touch. Some jewellery is particularly useful such as Rebecca Minkoff’s clutch purse which can turn into speakers or her bracelet that doubles as a phone charger. In most instances the products are linked to the user’s smartphone which makes them easy to set up and use.
Fashion technology can also help to locate misplaced important items. For example, GPS chips can be integrated into umbrellas (Kisha smart umbrellas) and suitcases. They could simply be used to tell you where your product is if it is lost or be triggered in a potentially dangerous situation.
Fashion technology’s move toward textile integration is particularly exciting. For example, fabrics which light up in the dark could save pedestrians and cyclists from injury on the roads. This is particularly important now cycling is set to become a major part of modern life.
With all new innovations there are a variety of legal issues to consider.
Wearable technology may often be capable of patent protection (or include elements that are protected by patents). Patents can be expensive to obtain and maintain but they can be crucial for businesses looking to obtain investment and offer a longtail of licensing opportunities after a product has ceased to be sold. Patents are not very common in the fashion world but are a staple (and arguably a thorn in the side) of the technology industry. As wearable fashion becomes more advanced and bigger players get involved an increasing number of patent disputes is inevitable.
One of the key differentiators of wearable fashion (compared to wearable technology) is that appearance matters. The Google glass was a wearable product but it emphatically was not a fashion item. Its fashion failure meant that only a handful of people wanted to wear it hence its disappearance from the world. However, those wearable fashion designs that look likely to succeed (and show good signs of success within the first year of being made available to the public in the EU including, for the time being, the UK) can be registered as designs at the EU or member state level. Any of these registered community designs that are registered prior to the end of the Brexit transition period will be automatically cloned into a UK equivalent registered design.
Designs protect the shape and appearance of the whole or part of a product. They enable the holder to prevent copies which are identical to the registered design or have the “same overall impression”. Even if a design is not registered, there are unregistered rights that apply for three years from the first unveiling of the design and a similar type of UK unregistered design right that protects the shape only.
One of the big issues with fashion technology is its sustainability and recyclability. It is hard enough to persuade people to recycle a woolly jumper but if it is embedded with LEDs it may not be possible to recycle at all. The EU has a strict regulatory regime around electrical items. For example, the WEEE Directive, set recycling and recovery targets for all types of electrical goods originally based on kilograms per head of population per annum recovered for recycling and now based on weight of electrical and electronic (E&E) products entering the market. Similarly, the RoHS Directive sets restrictions upon EU manufacturers as to the material content of new electronic equipment placed on the market.
Both of these Directives have been criticised for failing to have an adequate enforcement mechanism and, in the case of RoHS for penalising EU manufacturers. It is unclear to what extent the UK will continue to comply with these Directives after the end of the Brexit transition period but given that trade to the EU is likely to continue, compliance is likely to remain an issue for some time.
Finally, underpinning all of these wearable items is a steady stream of data. This raises significant data protection issues and concerns – particularly where health data is concerned as this is considered to be a particularly sensitive category of data.
An additional data issue which doesn’t get so much media attention concerns the rights that can accumulate in the way in which this data is collected, arranged and analysed. Databases can be protected both using copyright (which protects the selection and arrangement of the data) and, in the EU, by a standalone Database Right (which protects the financial investment that is made in a database). Both rights are important for wearable fashion and may represent the key value in many businesses, provided that the General Data Protection Regulation (and local law equivalents) are followed.
How any of this will play out in a post pandemic world is anyone’s guess at the moment but one thing is for sure – innovation is going to be all the more important and health tracking is likely to become more important for a whole variety of reasons. When the dust finally settles, wearable fashion may be one of the few pandemic beneficiaries.
To find out more contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com
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