By Skye Slatcher
In the world of motorsports, advancements in technology make or break seasons. The smallest differences between cars’ engines can cost teams millions in prize money. That is why much of the teams’ focus is on the research and development side of the sport. You might expect, therefore, that they would be locked in endless patent wars in a fight to secure their developments. The reality is that they don’t patent their innovations very often. Whilst they do engage in intellectual property in certain areas, such as for merch and licensing, motorsports series and patents often do not mix.
On the face of it, racing seems like the ideal environment for Ferrari and Mercedes to battle over patentable inventions with their cutting-edge technologies. Instead, the sport relies on secrecy, as opposed to legal interventions. One key reason for this is that the sport’s competitiveness is undermined if teams do not have the freedom to develop their cars. If one team had a monopoly on a specific part, the foundations of competitiveness would quickly fall away. Blocking other teams from using certain elements would prevent the close competition we have often enjoyed (except in the last couple of seasons, thanks to Adrian Newey’s technical genius at Red Bull).
It also makes no sense for these teams to be engaging in patent wars, given the time sensitivity of the advancements. The patenting process for any technology within the sport would need to be undertaken in at least every jurisdiction in which they race. Under international frameworks like the centralised Patent Cooperation Treaty (PCT), the implementation of patent protection takes a very long time. If, for example, a team were to develop a new turbo-charger or suspension system, which made them a tenth of a second faster per lap, they would not enjoy patented security for 18 months. The procedure also requires public disclosure, meaning that for a season and a half, every other team could use that tech. It simply makes no sense for them. Beyond this, if a team created a new wing set-up which granted them improved cornering, it is unlikely that this would qualify above the high standard required for a patent. It would not be sufficiently novel and inventive – rather it would be merely a slight improvement of existing technology. It just does not make sense for these teams to be trying to attain patent rights.
So for motorsports teams inaction is often best. It should be noted though, that it would be untrue to say that they never get patents. Generally, patents are sought for inventions that can be used for other endeavours, such as road cars. One example is Ferrari’s patented F1-derived halo, which remains yet to be seen on a for-sale model. There is also some practice of hidden applications, i.e. not filing inventions under Scuderia Ferrari or Williams F1 Team, but Ferrari SPA or Williams Advanced Engineering. This makes it slightly more difficult for rival teams to find the relevant F1 technology being used.
The teams rely instead on trade secrets. This is defined by TRIPS (an international agreement on trade-related IP) at Article 39 as information which is known only by a limited group, which has commercial value in secrecy, and which has been subject to reasonable steps to keep it secret. This depends on a culture of honour and an ability and will to keep secrets – much less robust than patents.
F1 has seen some high-profile spying scandals breaching this secrecy. The most high-profile of these was Spygate back in 2007. Accusations arose that over 700 pages of confidential tech and strategy information were handed over to McLaren by a Ferrari engineer. It was essentially a blueprint for the 2007 Ferrari. The engineer took it to a copy shop, where the employee found the documents suspicious, being a fan himself. He reported it to Ferrari and what followed was an unprecedented $100 million fine and expulsion from the constructors’ championships for McLaren.
A more recent example arose in the 2022 season. Aston Martin had poached several of Red Bull’s technical team, which was followed by their new car looking strikingly similar to the RB18. After an in-depth investigation by the FIA, it was determined that there was no espionage and that regulations were followed, but the event undoubtedly threw up some key questions about the role of Intellectual Property rights in motorsports.
Formula E, the all-electric racing series, strongly highlights how patenting can drive innovation. The series is only in its tenth season and teams have already been filing thousands of patents. It is inevitable that these technologies will trickle down into the standard road car market. McLaren, for example, has a patent on their batteries, having been the sole supplier for the Gen2 cars. ‘Win Sunday, Sell Monday’ remains a focus of these teams.
Beyond just patents, motorsports do make use of trademarking in a range of ways. Perhaps most recently, it emerged that Formula 1 had filed for a trademark for variations of ‘Chicago Grand Prix’, suggesting a future fourth GP in the US, as reported by Sports Illustrated. Many of the drivers have their names trademarked for certain product types, largely sporting goods, apparel, and toys. Some tracks like Silverstone even have their layouts trademarked. This allows them to maintain prestige and exclusivity while also protecting their commercial activities. It is important to emphasise that these trademarks have no bearing on the competitiveness of the sport, solely impacting endeavours outside of the actual GP weekend.
There are inevitably issues that arise from this. For example, the trademark for the ‘Shoey’ is owned by Formula One Licensing. The shoey itself is often described as Daniel Ricciardo’s ‘trademark’ celebration on podiums, so why is it that F1 owns the rights to this in footwear-based drinking paraphernalia? Ricciardo does own the trademark of his name in relation to the same goods, so this suggests a potential action by either him or F1 for infringement, should one of them begin selling ‘Daniel Ricciardo Shoey’ merch. This raises interesting questions about the culture of marketing within sports and whether it is fair that the sporting body can claim the celebration, on the grounds that they are the ones who granted him the platform to popularise it. Until litigation materialises out of this, it is unlikely that we will have a clear-cut answer.
Formula E continues to be an interesting case study in relation to trademarks too. The sound of the cars is unique in comparison with other racing series, with a high-pitched squeal. Legal commentators such as Buckland and Nawaro suggest that this could be an opportunity for them to exploit sound marks. Whether the sound is distinctive enough to qualify for protection is yet to be decided. Developments in the sport could impact commercial car sales too. BMW’s recent electric vehicles incorporated a collaboration with film score composer and music producer Hans Zimmer, for example. Future changes in this area are likely to come soon, so watch this space!
Other sports enjoy entirely different cultures around patents. Given their lack of such heavy focus on research and development, the discussion of IP rights is less contentious and has a smaller impact on competition within tournaments. A 2021 example of sport-related patent litigation arose between Nike and Adidas. The former alleged that the latter had infringed on protections for their Flyknit shoes. This ultimately had little material impact on any sport, highlighting the difference in how these issues play out across the field. Issues around copyrights and trademarks play out more similarly. Arguments around Club crests in football often closely parallel arguments that might arise around the use of tennis players’ names in racket promotion.
While imperfect, the current system within motorsports does lie somewhere around the right balance between endless litigation and a total free-for-all. Fast-tracked patents would not work, given the importance of competitor development. The reliance on trade secrecy can also make for some entertaining media coverage once in a while, so change to this practice seems unlikely for now. Across the sports industry, the importance of intellectual property will not be fading. As new technologies emerge, changes to legislation and procedures might shape future developments. On the whole, current practice seems to provide satisfactory outcomes. However, as seen in the example of trademarking car sounds, future claims could pose challenges that existing practice is insufficient in dealing with.
Illustration by Mithalina Taib
