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Remember Google Glass back in 2014? It was a device that a person wears like normal glasses. It helped the owner take pictures and videos of everyday surroundings with just a click of a button. Glass is not available today commercially, however it is still available and used in the medical field especially for surgeries.
[Image Source: istockphoto]
Ray-Ban Stories is a spectacle device created by Ray-Ban in collaboration with Facebook which also allows for the user to click pictures and videos and upload it to Facebook. Stories can be considered an advanced version of Glass.
Both these devices and many more such devices like the smart watches that are so popular right now fall under the ambit of wearables. The protection of which is very vast as is.
Wearable Technology in Short
Wearable Technology, as the name suggests is a technology, or a device incorporating the technology and wearing them on oneself. Smart watches are one of the most popular types of wearable technologies in India. There is also clothing, usually made for toddlers that keep the parents updated about the babies’ condition.
Wearable technology has not been clearly defined nor has the concept been brought forth in the Indian Legislations. Even so, it is undisputed that Intellectual Property Rights forms the base to protect such technology and products arising out of such technology. Among those, the most common ones are the Patents, Copyrights, Trademarks, and Industrial Designs.
Interface Between The Different Regimes Of IP In Regards To Wearable Technology
Before moving on to the overlap between the different IPRs, it is important to understand what types of IPRs are applicable to wearable technologies.
Copyrights: Copyright is the right prevalent for artistic, dramatic, musical, cinematographic works and software programs. The rights subsist only on the condition that the works are the original works of the author or the creator. Copyrights are provided for the expression of such creative ideas and not the ideas themselves. Hence only imagining or thinking of a poetry does not secure copyright. The poetry has to be produced in a tangible form. Copyright prevails as soon as the work is brought to a tangible form and a registration is not necessary, although it is advised to get copyrights registered.
In the case of wearable technology, any software programs, source codes etc can be protected under the copyright regime. Moreover, any manual, instructions for use or any such information on the product can also be protected under copyrights.
Trademarks: Trademarks are the marks that distinguish themselves from all the other products in the market. It acts an identification of the good, a check on its quality and eases marketing of the good. The mark applied for trademark protection should be distinctive, capable of differentiating from other goods in the market, it should not be descriptive or similar to an already existing mark.
Wearable technology products are marketed under a brand name. it is advised that the brand name be registered under the trademark act so as to avoid confusion and infringement. Trade Dress is a type of Trademark which may also be applicable to Wearables. It is covered in the later parts.
Patent: Patents are the rights given to any invention excluding others to use, modify or sell the patented invention without the expressed consent of the patentee. Section 2 and 3 of the Indian Patent Act, 1970 provides for the subject matter that cannot be patented.
An invention must be novel, must have an inventive step, must not be obvious to a person expert in that field of study and must have an industrial application for it to be granted a patent. In any of the above mentioned conditions are not satisfied, the invention shall be disqualified from attaining patent rights.
In the world of wearable technology, patents play a paramount part in monopolizing the invention. If the wearable involves an invention that satisfies all the necessary conditions for patentability, then a patent protection can be sought for the same. Sensors imbibed in the wearables can be patented if it is a new invention or a modification of an existing invention in accordance with the conditions laid down for it to be patentable.
Industrial Design: The Design Act, 2000 protects the appearance or the aesthetic of a product. It includes the shape, configuration, colours, patterns etc. Designsdos not protect the functionality of a product. That is the duty of Patents. Designs, however, only protect get-up or the look of the product. If the functionality of the product dictates the appearance of the product, the design protection cannot be granted.
Design protection shall be granted only when the design is novel, original and has no functional features on its own.
Wearables can opt for Industrial Design protection when they have a unique appearance and the appearance is not due to any technical function the product offers.
Trade dress: Trade dress is a type of Trademark which protects only the outer appearance of the product. It is not expressly defined in any of the provisions in the Indian legislature. The concept of trade dress is only mentioned in the definition for trademarks where it includes the shape of goods, the packaging and even combination of colours. Trade dress is granted protection only when it indicates the source of the goods or it evidently differentiates one good from the other. Trade dress also specifies that the shape or the appearance must not be functional.
Trade dress is a great tool to protect wearables in situations where the product’s overall appearance is not functional and its setting up as is, is not for a reason of its capability to perform its functions. Only in such a case, a trade dress protection can be granted.
Overlap Between the Different Kinds of IP
It is evidentiary that there is a clash between Patent, Industrial Design and Trade Dress. In order to achieve the highest possible protection for a wearable technology, an inventor hopes to protect his IP under all the aspects if possible. But on consideration of the meaning and the scope of each of the IPs, it can be outwardly inferred that Patents, Designs and Trade dress cannot be granted for the same product. This is not true.
Wearables involve an invention and also look unique since it caters to fashion and hence updates its outer looks accordingly.
A general misconception is that if the product has a function, design rights cannot be granted. This is however, false. Industrial Designs only protect the aesthetics of a product but not the functionality of the product. The product could be functional and could render a service, but industrial design only protects the appearance of such product and not the function. But if the function of the product itself influences the appearance of the product, then design protection cannot be granted. In the case of Apple V. Samsung, Samsung was said to have infringed Apple’s Design as the bezel of the Samsung phone was similar to the Bezel of the Apple phone which was granted a Design Patent in the USA.
It can be incurred from the case that though the phones have their own functions, which makes for the patent protection, the overall look or appearance does not perform any function and hence can be granted Design protection.
Industrial Designs and Trade Dress are often either considered the same or said to seek only one of the two IPRs. These two concepts seem the same but cover different aspects of a product.
Industrial Designs protect the appearance of a product but not the functional part of it. Trade dress, on the other hand, protects the outerlook of a good in order to distinguish it from other goods in the market. While both the concepts involve the question of functionality, the functional aspect of Trade dress over rides the functional aspect of Industrial Designs. Designs, in India is only protected for a maximum of 15 years. But Trade dress can be extended until the product stays in market. It is wise to start off the product by registering Design and once it expires, to continue the same as trade dress.
Patent and Trade dress protection in a single product is however very tricky. It is crystal that if the product is functional, trade dress cannot be granted. A patentable product, by default is functional. The requirements of a patent protection and a trade dress protection are opposites to one another. There could still be a patent and trade dress protection for the same product if any part of the wearable has no function of its own and has become a differentiator from other products in the market.
Wearables are increasing by the day. Currently smartwatches and medical wearables are dominating the market. But with the advent of the metaverse and other virtual reality spaces, the need for VR and AR increases. Web3 promises social interactions in the virtual world. And to make this a possibility and to make such interactions feel as real as possible, there will be many more wearables invented.
Such inventions have to be protected under IPR. From the discussion, it can be seen that one product can be protected under most, if not all of the concepts under IPR. A careful understanding and analysis haves to be made while applying for the IPRs so as to not leave gaps for rebuttal.