Will Boardsailing Be Deep-sixed In The Olympics?

 

The fight over Windsurfing's patent rights has spread to the 1984 Olympic Games in Los Angeles, where boardsailing was scheduled to make its debut as a one-person boat race. Over the prospect of boardsailing's gaining elite Olympic status hung a strong inference that unless Windsurfing didn't quickly settle its differences with Windglider-Fred Ostermann GmbH, makers of the European sailboard selected as the Olympic class, the International Olympic Committee would have little choice but to scuttle the new sport from the Games.

The feud started when the group making the selection, the International Yacht Racing Union, voted overwhelmingly in favor of Ostermann's Windglider. Windsurfing was stunned: The Windsurfer sells by a margin of 3 to 1 over the Windglider, it complained, and after all, it was Windsurfing that begat the sport of boardsailing to start with. Hoyle Schweitzer, Windsurfing's president, ruefully admits however that his company didn't compaign enough with the IYRU's heavily European selection committee.

Although a letter from the attorneys of the U.S. distributor of the Windglider insists that "no such license agreement exists," Windsurfing maintains that Ostermann has agreed not to import boards into the Olympic host country, the United States. Schweitzer insists that Ostermann has Windsurfing licenses only for Germany and England. It has none in Canada, Japan, or Australia -- all countries whose teams require Olympic equipment. Ostermann has also been named in one of Windsurfing's patent rights suits, and though last May Schweitzer and Ostermann got together to try to iron things out on behalf of the Olympics, Begin and Arafat would probably have gotten along better. "Ostermann played business hardball," snorted Schweitzer. Windsurfing denied the firm a license to import its board to the United States.

After the Windglider was selected for the Olympics, Schweitzer angrily challenged Ostermann's ability to deliver the goods, particularly in view of Windsurfing's resolve not to let the allegedly infringing board into the country. As part of the original selection, Windglider proposed to the Los Angeles Olympic Organizing Committee that it operate the event. Schweitzer then submitted an offer that topped Windglider, guaranteeing a cash payment of up to $100,000 if there was a cost overrun. The International Windglider Class, defending Ostermann, termed this "commercial black-mail." Alternatively, Ostermann and the IYRU explored holding the races on the coast of Mexico, only about 125 miles from the Olympic site at Long Beach.

Ostermann also had a legal trick up its sleeve. It argued that Windsurfing had issued the IOC an "implied license." When the International Yacht Racing Union, Ostermann explained, had asked Schweitzer for written assurance that he would not "invoke any legal or other action" if Windglider or any other sailboard were selected for use in the Olympics, Schweitzer had replied, "To the best of my knowledge there appears to be no problem with this." Ostermann's lawyers cited U.S. court decisions that said implied licenses were established when a patent holder was silent or delayed in asserting patent rights.

Windsurfing has in fact not directly threatened either the International Olympic Committee or the Los Angeles Olympic Organizing Committee, though it did mount a legal attack at another boardsailing competition. In December 1981, it tried to obtain a temporary restraining order against the week-long world championship meet of the International Board Sailing Assn. in Florida. A contract between Windsurfing and IBSA stipulated that participants in the races would not use unlicensed boards, but 50 of the 300 boardsailors failed to sign an affidavit to that effect. When the restraining order was denied, Windsurfing filed a breach of contract suit against two people from the European-based IBSA, which was staging the championships on U.S. shores for the first time. Schweitzer explained that there was no money involved in the action, but rather it was a question of asserting his firm's rights. A number of sailors were unimpressed. Muttered one, "I thought this was America, not Nazi Germany."

Though no such contract exists between Windsurfing and an Olympic committee, officials are tired of being caught in the crossfire between Windsurfing and Ostermann. So far, Hoyle Schweitzer seems unconcerned that his patent fight is placing legal shackles on the sport of boardsailing he has worked so hard to promote. He comments only, "I can't imagine the Organizing Committee wanting to violate the laws of the United States."