The Digitalization of Fashion - Fordham IPLJ Blog Post
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The Digitalization of Fashion

The Digitalization of Fashion

In recent years we have started to see people talking to their watches, or receiving the statistics of their workout through an accessory.  Wearable technology has captured the interest of consumers, but what are the legal implications that this industry will face?

Presently, wearable devices are mostly accessories and can be seen in two main industries: fitness, wellness and healthcare; and products delivering a combination of information and entertainment, such as smart watches or glasses.  1

The main legal issues surrounding wearable technology are intellectual property rights, and data privacy.  2  The intellectual property issues range from patent and trade secret protection to copyrighting and trademarking the relevant fashion designs.  Companies are anxious to protect their product’s name, function, look and feel.  3  The “intellectual property arms race” in the wearable’s sector has begun, with the first patent litigation already underway in the United States.4 Adidas has filed claims against Under Armour over its MapMyFitness app.

Meanwhile, tech companies like Google are acquiring an increasing number of patents.  “In 2013 alone, Google was awarded over 2,000 US patents, almost double the number of all previous years combined, including one for a “gaze-tracking system”.”5

Intellectual property rights aside, arguably the most pressing issues surrounding wearable technology are related to data protection and privacy.  While many are content to use a smart watch just for ordering food or checking the weather, these accessories are built to excel at data collection and sharing.  6 In order to provide insight into an individual’s workout routine, the device must be constantly collecting and storing personal data.7  Personal data is anything through which it is possible to identify a living individual, whether through that data alone, or in combination with other information in possession of the “data controller” (the entity who decides the purposes for which personal data is processed).8  The increased market presence of wearable technology has raised various controversial and high-profile data privacy concerns, including identity theft, profiling, discrimination and stalking.

Some designers are also finding that limits need to be placed on the functionality of their products.9  London-based fashion technology company, XO, has recently reassessed the implications of its products if they reach the public domain.  “Up until now the complexity of our designs and their one-off nature, like the flying dress for Lady Gaga,10 have protected them,” stated XO’s chief technology officer and co-founder, Ben Males.  11  XO is now considering the various consequences that such designs would have if made in multiples.  This development has introduced a host of new legal and ethical issues.

In 2004, XO worked with Saatchi and Saatchi to build wristbands that measured peoples emotions using changes in skin resistance.  12  It was the first time XO needed to consider that their product may end up in the public domain.  As a result, they opted to design the watches to stop working outside of the auditorium.

These issues are only exacerbated by the constant data collecting and sharing that occurs with wearable technology.  “When we start linking the emotional sensing in our clothes to things like location and friend groups it will start being tricky,” admits Males.  13

These issues will ultimately come down to whether consumers believe the user experience is worth the concern over personal data collection.  Considering the speed with which consumers welcomed smart watches into their daily routines, it seems that the legal issues surrounding wearable technology will do little to slow down the growth of a new industry.

Katarina Varriale

Katarina Varriale is in her second year at Fordham University School of Law and will be joining Greenberg Traurig LLP this summer. She plans to focus on transactional intellectual property work.