Agencies pitching for new clients have always been on shaky
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
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
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
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.