The culmination of the NFL’s 2018 season, the Super Bowl, was played last night between the New England Patriots and the Philadelphia Eagles. Those of you who stayed up late would have seen the Eagles crowned NFL champions as they overcame the Patriots 41 – 33 in the game’s dying minutes.
However, what wouldn’t have been obvious from your TV screens is the on-going fight between different technologies for tracking and monitoring NFL players during matches, at training and during recovery. Indeed, one of the recent trends in the NFL – and professional sports in general – has been the emergence of sports analytics. Indeed, the majority of NFL teams now use some method of on-field analytics to assess tactics, evaluate individual player performance and reduce the incidence of injuries.
For a number of years companies have been mounting sensors inside the shoulder-pads of American footballers to track them as they move around a pitch. These trackers output speed and location, and allow coaches and trainers to monitor player conditioning and evaluate tactics during matches and training sessions.
However, last summer a new company, WHOOP, struck a partnership with the NFL Players Association to provide a “recovery wearable” to NFL athletes. This wearable is a wristband aimed at professional and amateur athletes which tracks sleep, heart rate, and heart rate variability, and outputs a personalised recovery score quantifying an athlete’s physical condition. These bands – which cost $500 – have a sleek, modern design. This attractive appearance is a necessity given that the wristbands are worn 24/7 and must simultaneously act as a high-tech monitoring device and a fashion accessory.
This focus on aesthetics is reflected in WHOOP’s approach to intellectual property (IP). Unsurprisingly, an IP search shows that WHOOP have protected their brand through trademarks and the technology underpinning their wristbands using patents. However, WHOOP have also protected the physical appearance of their wristbands using registered design rights. These registered design rights prevent potential copycats from imitating the appearance of the WHOOP wristband, helping WHOOP stand out in an increasingly crowded wearable technology market.
The commercial pressures on companies manufacturing wearable technology are reflected in data available from the European Patent Office and European Union Intellectual Property Office. Whilst the number of published European patent applications for “wearable” technology has doubled in the last three years, design registrations have increased by nearly 3.5 times. These figures demonstrate the importance that wearable tech businesses place on protecting both the underlying technology and the appearance of their products.
Furthermore, this example shows that companies such as WHOOP which are developing and marketing consumer goods should be alert to the risks of focusing solely on trademarks and patents at the expense of protecting the appearance of their products using registered design rights. Instead, as my colleague Chris Anderson wrote last month, for many businesses the most well-known forms of IP protection are insufficient to fully protect their interests.
Much like NFL teams which use sports analytics to place themselves in a better position to compete on the field, businesses which are able to successfully analyse and leverage their IP place themselves in a much better position to succeed in the marketplace.
See here for more information on how GJE can help you assess and protect your IP.