Many product designers take a one-size-fits-all approach. Some products marketed as being “designed for women” are simply scaled‑down versions of existing designs, with no change to the underlying proportions. Others are the exact same product, but produced in pastel colours. Often, a so‑called “pink tax” of up to around 40% is added, where products marketed to women can cost significantly more than equivalent products aimed at men.
This “shrink it and pink it” approach may, at first glance, be just annoying and somewhat patronising. However, in some scenarios it can be downright dangerous. In our earlier article, we highlighted the striking statistic that women are 73% more likely to be injured in a car crash than men, due to historic use of crash-test dummies in safety testing that were only designed on male bodies. This problem is not limited only to women – design often defaults to white, male, able-bodied users, leaving those outside these categories at a disadvantage.
Thankfully, innovators are starting to address these problems. Returning to crash-test dummies, engineer Astrid Linder and her team have recently developed SET 50F, the world’s first crash-test dummy based on an average female’s body, accounting for the specific qualities of women’s torsos, joints and muscles.
Peequal is a UK-based company that has designed a urinal for women, addressing the fact that women in the UK wait 34 times longer for public facilities than men. The touch-free, modular, urinal units have already been used at the London Marathon and at Glastonbury festival.
Later this year, a research programme led by Florida State University and North Carolina State University, with collaborative support from the Fire Protection Research Foundation, is due to be completed. This programme will use 3D body scanning to obtain anthropometric data on the U.S. female firefighter population, specifically to design women’s structural and wildland firefighting PPE with better fit, mobility, and comfort. This project will help address the finding that female firefighters have a higher risk of injury and exposure than men, at least partly due to the use of PPE designed for male bodies.
Not all innovation in this sector amounts to a redesign of existing products. Some innovators are finding ways to adapt existing products by creating add-on solutions that improve user experience and safety. For example, the MimiBelt attaches to standard seatbelts to reduce impact pressure on pregnancy bumps.
So, how might Intellectual Property (IP) be relevant to these innovations in safety and product design? What are some key things to consider when building an IP strategy in this area? And what pitfalls are there to avoid?
When an innovation produces a technical function or improvement, patents can help protect the underlying ideas. What might seem like a minor modification can have a significant impact on solving problems that have been overlooked for years. Nevertheless, pioneering these new products is risky. Patent rights can be used to prevent followers from cashing in on your insight and investment.
But options for protection do not stop with patents. Even where proportions, ergonomics or function are the most important factors, many of the innovations in this sector will ultimately be consumer products. As consumers, we are all drawn to things that look appealing. Aspects of a product that relate to its visual appearance, which are not dictated solely by its function (and, yes, this might include making it pink), cannot be protected by patents, but may be protected by design rights in various jurisdictions. Design rights can be used to protect the appearance of the whole or a part of a product, arising from features such as lines, contours, colours, shape, texture, or materials of the product, or its ornamentation. The rights can apply to a product itself or to its packaging.
Design rights are often granted much more quickly than patents. Additionally, infringement of a design can often be determined by a relatively quick inspection of a product, rather than a detailed investigation of its inner workings and functions, as may be required when considering patent protection. This means that designs can sometimes be employed to swiftly target potentially infringing products, for example at a trade fair or when products pass through customs.
In some jurisdictions, certain design rights can arise automatically, without the need for a formal application. Such rights are often referred to as “unregistered design rights”. However, there are relatively strict requirements for an unregistered design to arise, and certain design aspects can only be protected by a registered right, for which a formal application must be made. Additionally, the duration of an unregistered design right is generally less than that of a registered design right, and enforcing an unregistered design right may require proving that the other party actively copied the design, rather than arrived at it independently. When considering whether unregistered design rights will be sufficient to protect your design, it is important to fully consider the nature and limitations of the protection that may be available and whether registering one or more aspects of your design may also be useful.
When innovating for safety, and especially when catering to a consumer group that may have felt disregarded in the past, having your brand recognised as one that customers can trust can be important. One way to convey to customers that a given product or service is provided by you is to use names, logos, or other signs that allow the customer to distinguish your goods and services from those of another. Such branding can be protected with trade marks. Once registered, trade marks can be used to prevent dilution of your brand from competitors using similar branding, logos, or product names.
Whichever routes for protection are most appropriate for your circumstances, growing and maintaining a portfolio of IP rights can be complex, particularly across different jurisdictions.
All of the IP rights above are territorial (meaning, for example, that a UK design right applies to the UK only and couldn’t be enforced to stop a competitor acting in the US, and a European trade mark cannot be enforced in Japan). When thinking about the IP that you need, it can be helpful to think about where you and your competitors will be manufacturing and offering your products and services, and tailor your portfolio to make sure you have applied for protection where you need it. This global approach can come with further complications, as laws and rules for obtaining and enforcing your rights can differ from place to place.
For products that are redesigns in a well-established market, there may be a lot of earlier IP and other publications. This can make it difficult to justify that your idea is new and original or inventive (a variation on which is required for most IP rights to be valid). With this in mind, there is a balance to be struck when applying for protection between identifying something that is clearly distinct and avoiding going too narrow. Protection that is too narrow potentially leaves the door open for others to make slight variations on your concept without infringing your rights.
When entering a market, particularly the relatively dense product markets that we are discussing, it is also particularly important to think about the rights of others. IP rights allow a right holder to stop other people from using an innovation, but the right does not necessarily mean that the holder is free to market their own innovation. Person A may hold a design right for a bicycle, but if Person B has the patent for the wheel and is not happy to license this technology, then Person A is not riding anywhere soon. Carrying out due diligence, such as a freedom to operate study, early on can highlight potential risks to an innovator’s ability to capitalise on their idea, before large amounts of time and money have been spent on it.
Given the number of different options available and things to think about in relation to IP, it can be difficult to know where and when to start. Having conversations with IP specialists early in development can help to cut down on the noise, and allows innovators to focus on the actions and IP rights that are most likely to help with building towards their overall goals.
If you are developing products in the FemTech sector and would like to explore how Carpmaels & Ransford can help protect your innovation, our team would be happy to speak with you.