The IP-ologist: The Intellectual Property in a Wimbledon Tennis Match

The Wimbledon Championships will not be taking place this year due to COVID-19, but the BBC will be showing some of the classic tennis matches that have taken place over the years and Wimbledon itself will show some special matches on social media. When watching Roger Federer, Serena Williams or Andy Murray at SW19 you may think there is very little intellectual property in play, but if you look closer at what the players are holding, what they are wearing, the ball they are hitting and consider all the technology that has led to the game being played as we see it, you’ll note that there is more intellectual property in a game of tennis than first meets the eye.

Below we will look at the grass court surface that is played on, the rubber that goes into the tennis balls that are struck, the designs of the outfits worn by the players, and even the drinks available at Wimbledon. With all these components a match can take place and we can see just how much intellectual property goes into a few sets of tennis (and a portion of strawberries and cream).

The Grass Court

The surface that gives lawn tennis its name deserves a special mention before the match can begin.   Wimbledon cuts the lawn to 8mm so that the courts remain sufficiently durable for the two weeks of play.  This maintenance is possible thanks to the patented invention of the humble lawn mower.  Edwin Beard Budding received a patent for “a new combination and application of machinery for the purpose of cropping or shearing the vegetable surface of lawns, grass-plats and pleasure grounds” in 1830.  It was a cylinder mower, inspired by linen cutting machines and the design is still in use today.  Without this, lawn tennis is unlikely to have taken off, with unpredictable bounces stifling play.  The lawn mower made croquet lawns possible for those lucky enough to have big gardens and as croquet became less popular, these surfaces were transformed for the game of tennis.

But what about the grass itself?  The surface at Wimbledon has been the focus of players and commentators for many years as it can have such an impact on the speed of play.  Players often remark that Court One plays differently to Centre Court.  Wimbledon uses 100% Rye grass for its courts.  You may think there is very little intellectual property in grass, but Rye grass is capable of being protected by a Plant Variety Right (or Plant Breeders Right). According to the latest issue of Plant Variety and Seeds Gazette, there are 145 varieties of Lolium perenne L. (Perennial ryegrass) which benefit from the protection.  Plant Variety Rights provide exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) of a new variety for a number of years. If you wanted to see the full list of Rye grass that are currently protected by Plant Breeders Rights, that information is available here.  It includes varieties such as “Temprano”, “Swan”, and “Novello”.

The smell of grass has even been the subject of a tennis related trade mark application. In the Vernootschap onder Firma Senta Aromatic Marketing’s Application, the Office of Harmonisation allowed an application to register “the smell of fresh cut grass” for tennis balls.

The Tennis Balls

The invention of vulcanized rubber was instrumental for lawn tennis – the balls needed to be able to bounce on the cut grass surface.  Until rubber, balls had been made of cloth and animal skin.  The invention of rubber is credited to Charles Goodyear who received patent 3633 from the US Patent Office on 15 June 1844 stating that he had “invented certain new and useful Improvements in the Manner of Preparing Fabrics of Caoutchouc or India-Rubber”.  The other person who deserves a mention is Thomas Hancock, who took out a patent for the vulcanisation of rubber when using sulphur eight weeks before Goodyear, but does not appear to have received such acclaim.

Rubber balls by themselves meant that there was significant vibration from the racket and up the arm when striking the ball and Barrister John Moyer Heathcote is credited with devising the use of flannel as a cover around the rubber – a precursor to the yellow felt we see today. The choice of yellow for the balls is due to the introduction of television cameras at Wimbledon. The balls were easier to see when they were yellow, rather than the traditional white. Heathcote does not appear to have availed himself of any intellectual property rights to protect the innovation over covering the inner rubber, but he may well have been a joint author of another important part of tennis: the rules.

The laws of the game

Wimbledon may have only changed the rules for the Mens and Womens singles last year – the introduction of a final set tie-break when the players are tied at twelve games each, but the original rules of tennis were actually drafted by a well known cricket club.

On 23 February 1874, Major Wingfield was granted patent for “a new and improved portable court for playing the ancient game of tennis” and this included a book on how to play the game. He favoured an hourglass shaped court, but many variations of the game emerged, often dependent on their environment and this led to a debate on the codification of the rules (including the scoring system and court layout).

Heathcote was a member of the Marylebone Cricket Club and was part of the committee responsible for drafting the original rules of lawn tennis. He has even been credited with instigating the meeting in which the rules were established.  By the time of the first Wimbledon Championships at the All England Club in 1877, the new rules were in operation and they may well have benefited from copyright protection.

The Racket

The racket that players use has seen a significant level of development, particularly over the last half century and a number of configurations from the use of wood, to the introduction of carbon fibre have received patents. This level of development was due in part to the lack of rules on what players could use for their racket (which is contrasted with baseball which has a strict requirement for ash bats to be used).

One notable patent was for the ’Streamline Blue Star’ by Hazells Ltd. This wooden design had a snow shoe look as the outer layers of the wooden laminate separated from the inner layers during development. The “Streamline” racket was used by Bunny Austin who was the runner up in the 1938 Gentlemen’s Singles Final at Wimbledon.

Rene Lacoste, who won Wimbledon twice, introduced (and patented) a steel racket that required the strings to be interwoven with a wire lacing around the exterior. This was licensed to Wilson who developed the “T-2000” used by Ann Jones to win the 1969 Ladies Singles title.

Peter Maxton notes that between 1960 and 1980 there were a number of such innovations. He notes that:

“[A] significant patent was granted to AMF Inc. of the USA, owners of the Head Sports Company.  The Patent, granted in 1969, used the technology for making skis to produce a moulded racket with a plastic core and reinforced web (fibreglass and epoxy resin) sandwiched between two aluminium plates to reduce flex”.

From Palm to Power: The Evolution of the Racket, Peter Maxton

This was part of a trend in the 20th Century for racket technology to benefit from other industries.

Rackets also have an interesting trade mark consideration.  Many players’ sponsors require them to paint their rackets with the latest colour scheme.  The trade mark (and paint) from the original racket is removed so that the player can endorse the latest range of rackets.  Andy Murray is a good example of this as he endorses Head Radical, but reportedly plays with a repainted Head Pro Tour 630.   This raises trade mark exhaustion considerations.

Wilson also recently released a racket name “The Clash” and the famous band also called “The Clash” complained on the basis that, because of their past endorsements with Converse, there would be confusion amongst consumers as to whether they had endorsed the racket. The issue of endorsements by players has come up at Wimbledon in relation to apparel.

The Apparel

When it comes to apparel, Wimbledon sets its own rules. With the dress code becoming more and more strict in recent years, there have been fewer opportunities for designers to showcase their talent. The clothing of players has often been adorned by trade marks and Guinot deserves a special mention for always managing to have their mark feature in a Centre Court match. But the most interesting case of a trade mark featuring (or not featuring) on Centre Court was the “RF” logo associated with Roger Federer. For the full two set match between Federer and Nike please read here and here.

By way of brief summary: Federer had been sponsored by Nike throughout his career, he had collaborations with Michael Jordan and for a long time was considered one of the most marketable athletes. Negotiations between Nike and Federer over a new contract broke down and at the 2018 Championships, Federer wore Uniqlo, his new sponsor. His clothing did not feature the “RF” logo which he had made famous. This was because it was owned by Nike. Only recently has Nike assigned the portfolio of “RF” trade marks to Federer and this will in part be due to the non-use provision in trade mark law. Nike were in the situation were it would lose the mark after five years of non use, but probably could not use the trade mark because of its associations with Federer and confusion over endorsement. Luckily it has all been cleared up now.

Federer is not the only famous player to be involved in the trade mark game.  Fred Perry, a former Wimbledon champion, is a well known registered trade mark and Lacoste owes its name and crocodile to Rene Lacoste.  His nickname “the crocodile” became a good marketing opportunity and a luxury brand was born. Lacoste has been involved in an important trade mark decision in which it was held that the swing tags on shirts amounted to genuine use of the mark, despite the tag not being immediately visible to the consumer – Crocodile International Private Limited v La Chemise Lacoste, 8 October 2008.

Adidas has been in its own match up against Wimbledon and the other three Grand Slams over its use of the three-stripe motif. The Grand Slam Committee code of conduct sets out the dress code which limits the amount of manufacturer advertisement on clothing or equipment. On clothing, there is a specified size (usually two square inches) for logos, but the three-stripe motif did not comply with this. Following claims from other clothing brands (most likely Nike) the three-stripe motif was not allowed from 2006. This move by the tournaments prompted Adidas to register the three-stripe motif as a trade mark.

The tracksuits that players at Wimbledon wear have also been mentioned in relation to unregistered design rights. In the Lambretta Clothing case, it was held that the choice of colour ways of a tracksuit top was not an aspect of the shape or configuration of an article or part of an article. Wimbledon was mentioned by the judge when coming to this conclusion becausethe image of McEnroe holding the Wimbledon trophy in 1981 and wearing a very similar red, blue and white colourway was regularly shown”. As a result the choice of colour ways was considered to be quite commonplace. This case would likely be treated differently now due to the EU Design Right.

Hawkeye

McEnroe is of course famous, not only for winning Wimbledon and playing in the memorable final against Bjorn Borg, but also for his on court outbursts.  “You cannot be serious” was shouted during a Wimbledon match but this sort of outburst is unlikely to be seen again due to the use of Hawkeye – US Patent US8734214B2.  This system, with its use of multiple cameras around the court, can determine (to within only a few millimetres margin of error) whether a shot is in or out and players are entitled to avail themselves of the system with three “challenges” if they think a line call is wrong.

Strawberries and cream

When it comes to something to eat at Wimbledon, there is only really one option. The Championships are perhaps best known for strawberries and cream, with 27 tonnes of strawberries being consumed and 7,000 litres of cream accompanying them every year. Wimbledon’s strawberries come from Hugh Lowe Farms in Kent.

Strawberries have even been the subject of a trade mark application. Laboratoires France Parfum SA, once applied to register an olfactory sign for various goods in classes 3, 16, 18 and 25. They described the sign by combining the words “the smell of ripe strawberries” and accompanied it with an image of a strawberry. Sadly this application was rejected by the Office for Harmonisation in the Internal Market because the sign could not be represented graphically, and had no distinctive character in relation to the relevant goods. Maybe, when it becomes possible to represent in a form acceptable for the register, we will see strawberries and cream being protected as a trade mark.

Pimms

Even a glass of Pimms is not immune to some intellectual property controversy. Sainsbury’s was accused of copying the likeness of a Pimms bottle for its drink “Pitchers”. A similar shaped bottle and label caused a dispute. The claim settled out of court with Sainsbury’s changing the label of their product. Wimbledon has a strict policy on what you are allowed to enter the ground with so it is unlikely that a pitcher or Pitchers will make its way in.

Lastly, the playing of tennis (although not at Wimbledon) has been considered in a case related to privacy/ image rights involving Princess Caroline of Monaco. In this case, Von Hannover v Germany, photos of her had been taken in a variety of places, both public and private and the Federal Constitutional Court refused to restrain the publication of her playing tennis (amongst other activities) because it was in a public place.

With that we are set for the match and you would be forgiven for wondering just what a game of tennis at Wimbledon would look like without the intellectual property.

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