The development and legal implications of smart fabrics.

When we talk about wearables, we instantly conjure up images of items like the FitBit, the Oura ring or even the Apple watch. Collaborations with fashion brands have certainly helped wearables move from gadgets that fail to resonate with the fashion conscious to items that can integrate seamlessly into our lives without compromising style. But are these items actually wearables? Yes, we wear them like we might wear a ring or a watch but aren’t we just talking about portability of technology? Surely wearable means more than just portable.

Technology tells us about ourselves, our lives, our sleep patterns, or our movements but what we wear tells the world so much more. What we wear tells the world who we want to be that day, it tells the world who has inspired us, in short, something that is wearable is much more than integrating fashion to enhance technology, surely a true wearable should be something where the technology enhances our fashion choices. This is where smart fabrics come into their own.

Now, I’m not talking about clothes incorporating space/futuristic designs using metallics and structured fabrics (although this was a trend for Spring/Summer 2016 for a number of designers), nor am I talking about a sensor loaded t-shirt for a pro-athlete or yet another way to stay connected to your mobile device – this is an article about fashion after all. No, smart fabrics can be so much smarter than that. Why does a tech infused garment have to mean connectivity, and indeed connectivity over style?

But there’s a new wave in town – you just have to look at the likes of Aris + Emel and Courreges with their stylish heated coats, Rainbow Winters with her dresses and swimsuits printed in photochromic ink which change colour under exposure to UV light, Ying Gao’s dress which utilises eye tracking technology to respond to an observer’s gaze by activating tiny motors to move parts of the dresses in mesmerising patterns and Zac Posen with his LED dress designed in collaboration with Google’s Made with Code and Madison Maxey to see that wearables are more than devices, technology is being used to enhance the aesthetic appeal of a fabric. Smart fabrics are becoming industries in themselves and those leading the charge include:

• Forster Rohner which has entered into a number of collaborations with designers looking to make use of Foster Rohner’s technical embroidery, from eye catching sleek suits containing LEDS for Arkis to bed linen for Swiss company Schlossberg which actively creates a lighting atmosphere in the bedroom;
• Madison Maxey whose company The Crated has created the INTELiTEX System which includes smart ink and conductive fabric; and
• Anrealage by Kunihiko Morinaga which in collaboration with Trident, created phone signal repelling garments.

Smart fabrics are clearly on the rise, but innovators should be aware that they come with a number of risks that do not generally accompany traditional garments and they should, before R&D starts consider the following:

• Do I need help with certain aspects? It may be that innovators need to source experts to help with the R&D phase, whether that’s a software developer, an engineer or a garment technologist, and in each case, innovators should be aware that those experts may be creating intellectual property rights as part of their engagement which will need to end up in the hands of the innovator so that the innovator can eventually exploit these rights and take the product to market.
• What intellectual property rights am I creating and how can I protect these? With the emergence of new smart fabrics, designers will have to think more carefully about how they protect their intellectual property rights; not just in the design of the garment but also in the fabric itself. Any smart fabric innovator should be seeking legal advice to establish what intellectual property rights might be in their designs and garments and how they can best protect and exploit these.
• Is my garment collecting data? Innovators will need to consider whether their garment is going to collect data from the wearer, for example, is this jacket going to take my temperature readings or are these leggings tracking my muscle movements. Where garments collect data from wearers, smart fabric innovators will also need to consider how data is collected, utilised and stored. Innovators will also need to consider how they interact with customers in terms of how smart fabrics are purchased, the legal basis for collecting and using users’ data and how they inform wearers about how their data will be used.
• What happens if I sell a defective garment? Unlike traditional garments, innovators of garments containing smart fabrics need to consider how easy it will be to replace or repair garments which have defects. Will it be a simple case of sending a replacement product or will customers have to return their item to the innovator to arrange for a particular aspect to be repaired or replaced. Take a smart coat for example, replacing an entire cashmere coat is likely to be expensive, however replacing the heating components or LEDS as stand-alone items will no doubt be cheaper and easier to replace. What an innovator is able to offer to its customers will be constrained by the technical composition of the garment but innovators should be considering how their supply chain is going to be managed and how returns and defective products will impact their bottom lines.
• My garment has electrical components, do I need to make sure it’s safe to wear?  Where a garment integrates technological components or aspects, innovators should be aware that the garment will need to comply with product safety requirements before it can be sold. Innovators/retailers should also ensure that they have sufficient insurance in place to deal with any product liability issues and also have proper product recall procedures in place should they need to recall products on short notice.

Smart fabrics clearly bring with them a number of legal risks during the innovation and sales process that just do not exist with traditional garments, but getting specialist legal advice early in the process will help to minimise the risks to ensure that innovators can successfully capitalise on their creativity.