As we already discovered in some of our previous articles on tech & fashion, innovative technology within the fashion industry is more apparent than ever. From updating retail experiences, to wearable technology like smartwatches, technology and innovation are continuously inspiring and influencing trends and fashions.

In fact, as Marty McFly introduced smart clothing that could self-adjust to his needs, now fashion brands create tech clothes which can heat up, cool down, change color or even size themselves, playing around with the concept of wearable, smart clothing and connected garments.

Smart clothes, also frequently referred to as high tech clothing, smart garments or wear, electronic or smart textiles, and e-textiles, are clothing items that have been powered with technology to add functionalities beyond their traditional use.

Wearables and smart clothes represent the meeting of designers with engineers in order to enhance people’s life, allowing them to stay connected without be distracted. Actually, wearing smart clothes, people access navigation, sports sharing apps, weather and traffic, music, telephone, or track the heart beat, monitor emotions and even pay for shopping via gestures, without grabbing a phone, but keeping it in the pocket.

Brands like Nike – with its “Nike Adapt Shoes” – and Ralph Lauren – with its “PoloTech t-shirts” – have connected their garments to a smartphone app, recording fitness activity and recommending new workouts to the wearer.

Tommy Hilfiger, with its “Tommy Jeans Xplore”, has created Bluetooth built-in smart tags connected to the company’s iOS app, to provide prizes and unique experiences to buyers.

Also Samsung is going big on smart clothing and has already shown off its “Body Compass workout shirt”, which monitors biometric data, and a golf shirt that includes weather and UV rating monitoring.

The last act of this generation of clothes is Levi’s Trucker Jacket with Jacquard by Google: by building touch and gesture sensitive areas on the jacket sleeve, users will be able to interact with a variety of services including music and map apps.

In this regard, fashion brands that want to create their stylish connected garment shall consider a lot of legal issues and requirements before launching their smart clothing collection into the marketplace.

First of all, fashion brands shall face regulatory requirements on the manufacturing and sale of electronic products (i.e. labelling recycling, product safety, storage and transportation) in addition to those related to the textile products.

Also, the level of service and the related warranties for consumers, together with the management of an adequate after-sales support to handle faulty products, disruptions, and related returns and refunds are critical aspects to consider in the creation of smart clothes.

Furthermore, in such a tech clothing product, data are considered as the new black.

To this end, fashion brands addressing innovative products to European customers have to deal with the requirements provided for by the EU Regulation on the protection of personal data (“GDPR”) and the deriving national adequacy laws. Therefore, they have to consider carefully which kind of data to collect in order to respect the principles and requirements set forth in the GDPR.

For instance, fashion houses shall collect and process ‒ for the time strictly necessary ‒ only personal data required for the purposes of the processing pursuant to the minimization principle provided for in article 5 of the GDPR. Furthermore, when companies process individuals’ personal data, they have to transparently provide them with information and details about the processing of personal data carried on, guaranteeing individuals specific rights and freedoms according to articles 13-21 of the GDPR (such as, for instance, the right to access to data, the right to be forgotten, the right to data portability, etc.).

In this regard, fashion brands shall also consider if their smart garments process biometric data, which article 4(14) of the GDPR defines as “personal data resulting from specific technical processing relating to the physical, physiological or behavioral characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data”.

Therefore, if the granularity of data used to run smart clothes allows to determine physical or behavioral features that can be uniquely referred to a specific individual, fashion brands are required to collect a specific consent and adopt additional security measures – both from a technical and organizational perspective – to lawfully process data, including the drafting of a Data Protection Impact Assessment according to article 35 of the GDPR.

Also eventual aggregation and anonymization procedures on data collected from smart clothes are per se data processing activities, needing a specific legal basis for the processing (i.e. the company’s legitimate interest).

In addition to the general principles above, fashion houses shall also consider any specific requirement under the applicable national laws. In particular, fashion brands selling their garments all around the world shall have the ability to deal with multiple jurisdictions with different obligations to comply with, also having various implications on the business.

In light of the above, even if the use of technology in clothes entails lots of legal obligations to comply with, people only look forward to being hip, wearing trendy clothes sensor-embedded and connected, which monitor their heart beats, health conditions, stress levels, or remember appointments, alert on to dos, allow to listen to music or surf the net with a dose of style and fashion.

For this reason, also fashionistas are all sat in the front row of runways, waiting for the combination of style and innovation in order to connect their digital life instantly and effortlessly.

If you would like to know more about this topic, please contact deborah.paracchini@dlapiper.com.