You serve me, and I’ll serve you
Swing your partners, all get screwed
Bring your lawyer, and I’ll bring mine
Get together, and we could have a bad time
– “Sue Me, Sue You Blues,” George Harrison
Written By: John Barba
George wrote that one about all the legal hullabaloo surrounding the Beatles break-up. If he’d lived long enough, I wonder what George would have to say about the legal wrangling over golf balls?
The latest golf ball Legal-Go-Round stars – who else – Acushnet/Titleist as the plaintiff, and ten direct-sale competitors who, collectively, are the defendants.
At the heart of this latest episode of LA Law is something called a “triangular dipyramid dimple pattern.”
Who’s Being Sued
Back in April Acushnet filed suit in Federal Court in Boston, claiming that ten competitors are violating Acushnet’s patented “triangular dipyramid dimple pattern” with their offerings.
The named defendants are:
A Common Factory, A Common Problem
As coincidence would have it, the same factory in Taiwan, which is not named in the suit, manufactures all of the golf balls in question. This factory also makes balls for a a number of OEM’s, including Wilson. Unlike the defendants, Wilson, it should be noted, designs and engineers its own balls, and was not named in the suit.
The companies named as defendants are, by and large, very small entities. In some cases we’re talking about websites, logos, and a marketing hook. Some of these guys are basically operating out of basements or garages. The reasonable inference is that these companies relied on the Taiwanese manufacturer for many aspects – if not all – of the design, engineering, and production of their golf balls. That would include the triangular dipyramid dimple pattern in question.
Acushnet is seeking an injunction and damages, and is demanding a jury trial. As it stands now, nearly everyone is lawyering-up and no one is talking specifics on the record.
According to Courthouse News Service, Acushnet’s 30-page lawsuit describes in detail its patented “triangular dipyramid dimple pattern.” Acushnet says the pattern reduces both lift and drag, “causing the ball to fly along a more penetrating ball flight.”
Acushnet’s claim is centered around three patents from 2003-2004. Those patents were the foundation of what would become the ProV1x; the alternative to the ProV1 which, in addition to other differences, has 60 fewer dimples. The patents in question, according to Courthouse News, “combine lower dimple coverage with multiple dimple sizes to provide high dimple coverage and improved aerodynamic characteristics.”
Acushnet says all ten defendants use that very same pattern; 318 dimples in three different sizes.
Yep, it seems someone counted all those dimples.
Perry Mason Returns…
As any good GolfSpy knows, this isn’t the first time Acushnet/Titleist has been “balls-deep” inside of a courtroom.
In 2005, Bridgestone sued Acushnet over solid core, multi-piece ball patents. They settled out of court two years later, with Acushnet paying Bridgestone a license fee and ongoing royalties on certain patents while non-royalty cross-licensing covered the others.
And then there was the five-year golf jihad between Acushnet and Callaway over who came up with solid core technology first. First Callaway won. Then Acushnet won on appeal, and then a Federal Judge refused Callaway’s request for a new trial. Ultimately, the two sides agreed to disagree by reaching a settlement in 2012. No money changed hands, but each company agreed to make golf balls under patents owned by the other.
The First Domino Falls…
It’s been a little over a month, but this latest suit has already claimed its first victim. In an email to its customers, Rob Zimmerman of 3 Up Golf says he’s getting out of the ball business:
You can read the full letter here.
Kick X, however, is circling the wagons and firing back:
As for the other defendants:
It’s business as usual at the Boston-based Monsta, which is continuing its aggressive social media sales campaign, widening its offering to include apparel and accessories, and is developing new avenues for selling its products.
Rife is still selling its V-Motion balls on its website, while Lightning has emailed its customers, saying it’s discontinuing its 318 dimple ball, the HL3 SmackDaddy:
They still have some HL3 Smackdaddy balls in inventory, which are selling for $25/dozen on the Lightning Golf website.
Vice Golf is based in Europe, and is still selling all of its 318 dimple balls. It has also recently released a new ball, the Vice Pro Plus, which features 336 dimples.
Dixon, which has positioned itself as the “eco-friendly” golf ball, also still lists the 318 dimpled Dixon Fire online. Now listed at $74.95 per dozen, we can only assume Dixon is trying to offset legal expenses.
What Happens Now?
The legal experts I’ve spoken with say that, even if the defendants didn’t realize the balls they’re marketing are violating patents, they’re likely still liable. Each company is ultimately responsible for its products, and ignorance of existing patents, and their manufacturing partners alleged infringement on those patents certainly doesn’t get them off the hook. Businesses fiercely protect what they feel is their intellectual property. That appears to be what Acushnet is doing in this case.
We could also argue that it’s highly doubtful the total annual sales of all ten defendants combined even puts a dent in 2 weeks worth of Titleist’s ball sales.
Is this a case of the big guy bullying the little guy entrepreneur and swatting them away like flies, or is this a company protecting its intellectual property?
If this ever gets to court, we’ll find out. In the meantime, we have to consider how long some of these smaller companies can hold on before they run out of money. One defendant has already picked up his ball and gone home (even if it may not have actually been its ball to take).
How long can some of the others hold out?