The Who, What, and “Wares” of Wearable Technology – Protect Your Morphing Products

In years past, “wearable technology” was pretty much limited to wristwatches and miners’ headlamps. Today, wearable technology is one of the fastest growing segments in the technology marketplace. Countless consumer products now include a technology component, including such traditionally non-electronics sectors such as jewelry, fashion, fabrics, sports equipment, pet care, and health.

The confluence of technology and consumer goods requires a shift in how traditional consumer product brands are positioned and marketed. For example, sports bras that track GPS location, and watches that measure your BMI no longer fit neatly in a particular marketing category. Marketing efforts need to be more creative and targeted to educate consumers on the benefits of the combined technologies.

Similarly, the process of “clearing” a trademark for use and registration, and filing to protect a brand with fluid application, takes on a greater significance when a product spans a number of product categories. Clearance searches should be conducted more broadly, and identifications in trademark applications should include not just the traditional nature of the goods (e.g., jewelry or shoes), but also the technology encompassed or accessed by the goods.

When it comes to protecting a trademark for wearable technology, the wording of the identification of goods and/or services is pivotal to the scope of protection ultimately accorded to the mark, both by the PTO and the courts. Prior to filing an application for a cross-product technology, we recommend that brand owners clearly map-out the scope and possible applications for their technology. Possible considerations include:

1.The nature of the technology, and how it will be delivered to consumers
2.The nature and function of the goods that may encompass this technology
3.Potential consumers and geographic markets for the products
4.Possible future applications for the technology

Some of these same considerations may be given to the product design as well as its packaging for possible protection by trade dress, or its close cousin, the design patent.

By thinking broadly at the outset, developers of wearable technology can help protect their technology brands for application in a whole host of consumer goods.

This article appeared in the September 2015 issue of MarkIt to Market. To view our past issues, as well as other firm newsletters, please click here.