I’ve been wondering for a little while why fishtail rackets were so prevalent in the late 1800s and early 1900s in the UK but didn’t seem to be manufactured in the US. A niche question, admittedly.
Fishtails were cranked out by almost every manufacturer in the UK for years (1880s - 1920s) and evidently were pretty popular (Slazenger’s Demon was their premium racket for 30 years and, according to one of the cases below, increased Slazenger sales by 20% in the 1880s despite being priced half a crown above the rest of the range). A couple of examples are below from the 1890s and 1910s:
Meanwhile, although US manufacturers did make bulbous and baseball-handled rackets, I haven’t found a single example of a US-manufactured fishtail over the same period (please do correct me if I’m wrong). This may just be down to a lack of demand from the American public (and many contemporary tennis writers did critique fishtails as a worthless fad). But it is an interesting disconnect between the US and UK in an area (racket design) that otherwise largely evolved in lockstep over this period.
I wondered whether this was attributable to that most noble of pursuits, intellectual property law.
Back in 1884, Ralph Slazenger Moss patented the fishtail design of tennis racket in Great Britain (No. 226 of 1884 on “Improvements in the Construction of Bats for Lawn-Tennis and other Games”). Subsequently an identical US patent was obtained in 1886 (No 346,858 of 1886 - extract below).
The US patent endured until its expiry in 1903. Now, you’d imagine that Slazenger would have churned out fishtails into the US market from 1886-1903 to capitalise on this exclusivity. But that does not seem to have happened and there certainly wasn’t any great swathe of fishtails released upon its expiry. Contrast this against the UK position, where the GB patent was found to be invalid in 1888, which likely opened the floodgates for other manufacturers to roll out their own fishtails with impunity.
Before we get to that, as you can see from the above, the patents were primarily focussed on the grooved handle, with the fishtail being an associated feature. The unique feature of the grooved handle, it was argued, was that it allowed the player to find the correct grip on the racket without looking at the handle. However, as fishtails always had this rounded handle (rather than a bevelled grip) the two features were intrinsically linked.
The GB patent was found to be invalid by Kekewich J (of whom more below) in the first of the two Slazenger v Feltham cases in the 1880s. Slazenger argued that Feltham had infringed their 1884 patent by manufacturing and selling rackets with a grooved handle (and fishtail, though as noted above, this was not the central focus of the claim). In the 1886 case of Moss v Malings, Slazenger had been awarded an injunction against Malings on the same grounds (admittedly in front of North J, Kekewich J’s closest rival for the title of least respected Chancery judge in Victorian London) and so they presumably fancied their chances against the Aldersgate Street outfit.
However they reckoned without the Feltham team bringing the veritable Kraken of legal defences and counterclaims. While all bar part of one of Feltham’s 6 counterclaims were rejected, Kekewich J agreed, after studying and testing at least 20 rackets produced by Feltham, that the grooved handle design had its roots in the old play rackets of early tennis and battledore. These rackets were formed of a single piece of cane, bent around to form a hoop, with the two ends being bound together as a handle. The handle of those rackets thereby had a natural groove between the two ends that could be easily felt through the binding. It followed therefore that Slazenger’s patented design lacked the necessary quality of novelty when registered and therefore the judge ruled the patent invalid. For some unknown reason, this case is not mentioned in Brian Simpson’s otherwise comprehensive book about Slazenger and Dunlop...
While this explains why there was such a multitude of fishtails made in the UK following the ruling, it still doesn’t really answer the root question above. So, in order to distract you from the fact I have no answer to this question and you’ve just wasted 5 minutes of your life reading the above, I’ll tell you about the second, more famous Slazenger v Feltham case.
This second case also came before the High Court in 1888. Again, it related to fishtail rackets but this time the claim brought by Slazenger was for trademark infringement. Feltham had produced a line of fishtail rackets they named “Demotic”. This probably would have been enough in itself for Slazenger to start drawing up writs, but Feltham also stamped that name on the same points of the frame as Slazenger stamped “The Demon” on their own fishtail range. Slazenger sought an injunction to stop Feltham selling these rackets and a ruling that the Demotic rackets should be destroyed or provided to Slazenger. The case turned on whether it could be said that, by these actions, Feltham was intending to deceive purchasers such that they would buy a “Demotic” thinking that they were buying “The Demon”.
The case came again before our old friend Kekewich J, whose first instance ruling went up to the Court of Appeal in 1889. This was by no means an uncommon event. Kekewich J tended to take, shall we say, a pragmatic line on cases where guidance in statute or caselaw was not immediately available (bon mots from his rulings included: “This seems to me to be one of those cases in which the Court is bound to arrive at a conclusion without having any satisfactory means of arriving at it.”). Vanity Fair caricatured him as the “Hasty Judge” and this featured strongly in his ruling in both of the Slazenger cases, with veiled barbs at North J’s judgment in Moss and full on broadsides aimed at Feltham’s arguments and witnesses.
Consequently, his judgments were generally accorded limited credibility. The story goes that counsel for the appellant in another case advised the Court: "If your Lordships please, this is an appeal from a decision by Mr Justice Kekewich; but there are also other grounds for the appeal."
Here, he ruled in favour of Slazenger at first instance. In retrospect, Feltham did not help their case enormously by admitting that they had chosen the name “Demotic” by leafing through a dictionary and taking the closest name to “Demon” that they thought they could get away with. Feltham were found to have breached Slazenger’s trademark and were directed to offer up the offending articles to Slazenger. Feltham evidently yawned, rolled their eyes and pushed the button on their appeal.
On this occasion however, Kekewich J was vindicated, as the Court of Appeal affirmed his first instance ruling. Lindley LJ even supported his approach to filling in the gaps where the law was deficient, with his ruling still no doubt quoted by trademark lawyers down the pub. Referring to Feltham’s naming and stamping of their racket, Lindley LJ said “Well, what is that for? One must exercise one’s common sense, and, if you are driven to the conclusion that what is intended to be done is to deceive if possible, I do not think it is stretching the imagination very much to credit the man with occasional success or possible success. Why should we be astute to say that he cannot succeed in doing that which he is straining every nerve to do?”. This finding remains good law to this day. Another decision in this case by the Court of Appeal created precedent, where they agreed to vary the “offering up” direction to allow Feltham to score away the names stamped on their “Demotic” rackets instead (provided that a Slazenger rep was present to witness it) and to continue to sell the reworked frames. Needless to say, finding an unaltered “Demotic” is now on my to do list...
TLDR: I’m confused why no fishtails were made in the US. I had a corker of a theory which didn’t stand up to the lightest scrutiny. I read extensively around the subject of 19th century legal challenges to racket design patents so I felt the need to regurgitate it here. Being a Chancery judge in Victorian London looked an easy gig.
