Written by Zach Nickels and Nicolas Auger

Opening day is right around the corner, you smell fresh cut grass, you hear the ballpark franks sizzling on the grill and see the baseballs rubbed in mud. Yes, a little-known fun fact about baseball is that each baseball is rubbed with mud before play to remove the gloss and slick feel of the ball. This seems like the tradition of a bygone era, but there is reasoning behind it and a story of ingenuity.

Originally, baseballs were rubbed with either infield soil or sometimes even tobacco juice to give them grip and remove their glossy finish. Then, in 1938, Lena Blackburne, a third-base coach for the Philadelphia Athletics, set out to find a better substance that could achieve these results without damaging the leather surface of the ball.

Blackburne discovered the perfect substance: mud from a secret location in New Jersey on the banks of the Delaware River. This special mud, once aged and subjected to secret processes, provides the perfect composition for grip on the ball and an appropriately tinted finish when rubbed onto the surface of the baseball. The mud makes the ball perfectly grippy for the pitcher while reducing its shine so that batters can still see it.

After coming across this discovery, Blackburne founded the company “Lena Blackburne Baseball Rubbing Mud” and proceeded to gather and sell this mud to Major League teams. By the 1950’s, it was used by every single team in the League.[1]

So, what makes this mud so special? Well, according to a 2024 study from the National Academy of Sciences, the mud works because it fills the pores in the ball’s leather surface leaving a residue that almost doubles its cohesion with human skin with tiny clay particles that create a “studded” surface, thereby enhancing friction between the baseball and a player’s hand. Even today, this proprietary mixture has not been replicated elsewhere.[2] To this day, the Lena Blackburne Baseball Rubbing Mud company is the only source of this special mud for the MLB.

The obvious question on every baseball fan’s mind: how is this protectable? Can this even be considered intellectual property? Blackburne didn’t invent the mud, nor can you trademark the signature texture and feel of the ball. This is where the humble, yet potentially powerful trade secret goes to bat.

Trade secrets can be a very formidable tool in protecting what could otherwise be protected by traditional forms of intellectual property (such as inventions protectable by patents), or subject matter which cannot be considered intellectual property in the traditional sense (such as a recipe). However, trade secret efficacy depends on knowing how to “use” trade secrets.

The trade secret framework in Canada is regulated by common law (i.e., jurisprudence) as opposed to statute, and those who misappropriate trade secrets can be liable for breach of confidence, breach of fiduciary duty or breach of contract. Critically, once a trade secret is publicly known, it loses its protection. This is why it is of the utmost importance to have guidelines in place for keeping the trade secret… a secret.

To qualify as a trade secret, (1) the information must have commercial value, (2) the information must be secret (not publicly known), and (3) the business that “owns” the trade secret must take reasonable steps to keep it confidential. There are also various other factors a court may consider as to whether information is a trade secret such as: the value of the information, the cost in creating it, whether misuse resulted in detriment to the owner, and others. In Canada, trade secrets are treated much the same as confidential information. Courts can imply the duty of confidentiality and the tort of breach of confidence to provide monetary and importantly, injunctive relief and restrain use of the confidential information. The test to establish breach of confidence is set out in Lac Minerals Ltd. V International Corona Resources Ltd., consisting of three elements:  that the information conveyed was confidential, that it was communicated in confidence, and that it was misused by the party to whom it was communicated.[3] 

In the case of Lena Blackburne’s mud, the precise site of the mud harvesting, the layer of sediment it is taken from or any proprietary treatment of the mud could all be the subject of trade secret. Any related formulas, recipes, supplier/customer lists, specialized techniques and more could all be kept in confidence in protected as a trade secret.

Protecting a trade secret is no small task, but there are best practices to using them. For example, implementing a formal trade secret policy with your business or organization supported by technical and legal safeguards can help protect your trade secret. Internal controls such as restricted access, contractual protections and document management are also essential measures to incorporate in protecting a trade secret. Ultimately, effective guidelines and management of trade secrets preserve a company’s competitive advantage and can assist in reinforcing the information’s status as a trade secret when enforcement is needed.

The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.

[1] Lena Blackburne rubbing mud a secret of the game | Baseball Hall of Fame

[2] Soft matter mechanics of baseball’s Rubbing Mud – PMC

[3]  1989 CanLII 34 (SCC), [1989] 2 SCR 574 at para 129.