Platform: Don’t leave your pitch ideas open to thieves - There are ways of protecting your intellectual property without alienating potential clients, says Andrew Hamlett

Agencies pitching for new clients have always been on shaky ground.

Agencies pitching for new clients have always been on shaky

ground.



Do you lay all your cards on the table and risk your ideas being pinched

and reproduced without you being hired, or do you hold back and risk not

getting the account because you didn’t demonstrate what you’re capable

of? It’s a thin line and most agencies - particularly small ones - don’t

know which side of it they should be on.



Take one south London PR agency that was recently asked to plan a

high-profile campaign and was up against only one other competitor. The

agency invested significant time and energy in researching the subject

and drew up a comprehensive launch plan with various budgeted

options.



The agency wasn’t chosen but, when the launch took place, agency

personnel who had worked so hard on presenting a plan to the client,

were surprised to see so many of their ideas incorporated into its

competitors organisation for the event.



In this situation, unless you can get hold of the opponent’s pitch

presentation, there is no way of knowing if this was poor business

practice or pure coincidence.



Unfortunately under copyright law, you can protect the expression of an

idea but not the idea itself. Therefore copyright law is not

particularly helpful when protecting pitch material.



Another, more hopeful avenue to take is confidentiality. Unlike

copyright law, a confidentiality clause might offer protection for ideas

and concepts.



Agencies could state on pitch papers and presentation items that the

material was provided in confidence and only for the purpose of

assessing the quality of the agency. A short statement expressing this

could be used on each piece of paper or slide or simply at the beginning

of the presentation.



It would allow agencies to reinforce to potential clients that the

material was considered confidential and must not be used for the

clients’ benefit until such a time as the agency was appointed, and then

to be used only in accordance with the terms of the contract agreed

between the two.



Ideally, however, agencies should obtain a signed confidentiality

undertaking from the prospective client, although some agencies fear

this could be a barrier to building goodwill and a good working

relationship and could, in fact, deter a prospective client from asking

the agency to go through with the pitch.



Should the agency not be appointed and the client breach a

confidentiality undertaking, legal action could be taken. This might

include taking out an injunction preventing further use and suing for

damages for lost fees or the lost opportunity to use the ideas in a

pitch to another potential client. However, such a case could take some

years to reach court and you have to weigh up whether it is worth the

management time and money that may be required to see it through.



As well as getting a written confidentiality undertaking from the

client, it is well worth giving details of the creative process,

appropriately dated, to a trusted third party. This will help to prove

that the ideas were created by your agency on a certain date. Having

this could be useful should a court case ensue when you could demand

that the competing agencies produce their pitch proposals for

examination.



At the end of the day, think very carefully before you disclose too much

at the pitch presentation. Give a flavour of what you are proposing but

unless you have introduced a confidentiality statement, consider holding

back on the detail.



Andrew Hamlett is an intellectual property expert with London-based

solicitors, Belmont and Lowe.



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