IP Advice: Fashioning an IP strategy

The link between fashion and technology has been long established. This trend was evident more than 30 years ago, when the Sony Walkman was the latest 'must have' product. A few years ago, the white ear buds associated with the iPod became a fashion statement. More recently, Beats headphones (pictured) are the latest gadget wear. Many technology companies have identified this trend and have started developing wearable technology, designed as much for style as function. Indeed, Google has recently announced a tie up with Luxottica, which is the company behind the Ray-Ban and Oakley brands. It is predicted that, by 2016, we will buy 93million wearable devices a year. Many of these will interact with other technology products, such as smartphones. As wearable technology is designed to look cool and to be desired by tech-savvy consumers, these products will sell at premium prices. Manufacturers therefore need to consider the Intellectual Property available to protect their products. Registered designs Registered designs protect the appearance of a particular product or graphical user interface (GUI). In electronics, the distinctive appearance of a particular product or a GUI is sometimes crucial to that product's success. Indeed, such is the importance of design in electronics that Steve Jobs considered Jonathan Ive (who designed the iPod, iPhone and iPad, amongst others) as his 'spiritual partner at Apple'. Apple filed Registered Designs for the shape of an iPad, iPhone and associated GUIs. Apple then sued Samsung, alleging its Galaxy Tablet range infringed these designs, which took centre stage in the recent global battle between Apple and Samsung. For wearable technology, the appearance of a product will be, arguably, be even more important and should be considered carefully by manufacturers. However, in order to protect this distinctive appearance, manufacturers need equally to consider protecting the appearance using registered designs. Patents Patents protect the way in which a product operates: specifically, they protect the way in which a 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 technology will usually include sensors, for example, a pedometer in a Sony SmartBand or user location in the Nike SmartWatch. These sensors may be capable of patent protection if they are improvements over known sensors – for example, if they consume less battery power or are smaller than known sensors. Secondly, many wearable technology devices 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. In this instance, the manufacturer would wish to protect both the wearable technology and, separately, the app. This will stop other manufacturers copying aspects of the app. However, in certain instances, it may not be possible to protect the app separately. Although beyond the scope of this article, in order for an app to be protected in its own right, the app must solve a technical problem. Examples of such technical problem include communicating with the wearable technology in a more efficient manner. An article examining this in more detail is provided at www.dyoung.com/article-bigdata Trade marks A particular brand name or logo used to market the wearable technology product can be protected as a trade mark. Registered trade marks ensure the goodwill and business reputation built up under that brand name or logo are protected in relation to specified goods or services. As wearable technology contains features that relate to 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 the glasses themselves and the display device technology. Conclusion Wearable technology will provide many opportunities for technology companies over the next few years. In order to secure their market share, it is important for these companies to protect every aspect of their wearable technology; from the appearance of the product and the way in which it operates to any branding associated with the product. This synergistic approach will protect the market, should competitors get too close or should any copycat products appear. Further detailed information is available in the Knowledge Bank or by contacting a Partner at D Young & Co LLP. Both can be found at www.dyoung.com. Alternatively, email Jonathan Jackson at jaj@dyoung.com