Since the beginning of the internet, all sectors, not only fashion, have changed immensely. The order process of clothes and accessories through the internet up to delivery within maximum a few days or even the same day seemed like a revolution. Technology however is still constantly reshaping the fashion industry. This article will discuss some of these new technologies and their impact on the fashion industry as well as the legal challenges that will come with them, including 3D printing, wearable technology, virtual reality and blockchain.
Although 3D printing technology is not something new (the first patent on this technology originates from 1984), 3D printers nowadays are getting better, more efficient and cheaper. Because of that, more manufacturers are starting to implement and use this technique in their production processes.
One of the main concerns of 3D printing is that it makes it possible to copy almost any object, with or without the authorization of the IP right owner. Indeed, objects can now be scanned and converted into a CAD-file which can subsequently be used to print the scanned object by a 3D-printer.
The possible infringers are various: the manufacturer of the 3D scanner, the designer / uploader of the CAD-file, the website owner of CAD-files, the downloader of the CAD-file, the 3D printing manufacturer, and 3D service providers such as 3D print shops. How do current IP laws protect the various IP right owners?
IP rights, including copyrights, design rights and patent rights provide some sort of exception for private and non-commercial use. Such use, also in the framework of 3D printing, will not lead to infringing acts although they will have a huge commercial impact on the revenues of the IP right holders. Thus, under the current IP legislation, IP rights owners will have to consider the intermediary parties such as the 3D-print service providers, rather than the end consumer, when claiming their rights.
Some companies may introduce 3D-printing in their production process or offer 3D-printing services. When offering individualized fashion articles, the service provider will of course need to be careful not to infringe third parties’ IP rights. An infringing design could, for example, be 3D-printed under instructions of the client. An exclusion of liability in general terms and conditions is recommended. CAD-files delivered by third parties can also be corrupted causing the 3D-printer to print a defective product. Here again, general terms and conditions, disclaimers and user manuals can prevent responsibility and product liability.
The fashion industry will need to be prepared and update its IP strategy in view of 3D-printing technology.
Virtual reality is a second technology with an important impact on the fashion industry. Thanks to augmented reality, a simulated environment is created through the use of computer technology, simulating artificial objects and information into a real environment.
The principles regarding IP rights which apply offline should also be considered in a virtual reality environment. A commercial use of copyrights, trademarks or designs, for example in a VR web shop, will hence require the consent of the IP right owner. In case recognizable persons are used in the framework of VR-applications, their consent will also be needed.
More and more technology are being integrated into clothing and accessories. Apple designed the Apple Watch. Subsequently, Nike redeveloped the Apple Watch for sports purposes, in cooperation with Apple.
Wearable technology is very often the result of a collaboration between two parties who combine their know-how, one more in fashion design and the other in technology. Clear agreements between both will therefore have to regulate their collaboration among other with regard to ownership of IPrights in the product, remunerations, advertising, confidentiality, liability and other potential issues.
Moreover, wearable technology often processes a lot of personal data about the consumer, potentially even sensitive data related to the health of the consumer. This will require an explicit consent of the consumer as a legal basis for processing.
Finally, blockchain is maybe the new technology that is developing at the strongest pace. While traditionally data is kept centrally, blockchain changes this principle by storing data in a decentralized manner. This contributes to the security of the data, as the data cannot be altered without verification of all the blocks in the chain in which it is being stored.
Contrary to the other three technologies descripted above, blockchain creates new legal opportunities instead of new legal challenges. In the fashion sector the production process can be made transparent for consumers (e.g. Martine Jarlgaard) and smart contracts can be introduced in the distribution process. Blockchain also has the potential to enhance IP protection for designers and brand owners. When goods can be tracked through blockchain, their authenticity will be easily verifiable by brand owners, retailers and consumers, reducing counterfeiting and fraud, even when goods are sold second-hand or through discount sellers.
We will need to await how fast and how in dept these new technologies will evolve and be implemented in fashion, but one thing is for sure: we need to be prepared!
Christine De Keersmaeker
Sócia do escritório KOAN (Bélgica)
Advogado do escritório KOAN (Bélgica)