Solutions to IP Pitfalls

Wide agreement exists about the risks for agencies in revealing their ideas, proprietary processes and work product during the agency review process. Risk exists for clients as well as they cautiously share their strategic issues, brand problems and proprietary data with potential agency partners. But agencies and advertisers, as well as search consultants, have the opportunity to reduce their risks by defining and tightening standards regarding intellectual property (IP) rights during reviews.

Clients often ask for the creation of original material in an effort to reduce agency selection risk, differentiate capabilities among shops, or better define the scope of work. Agencies respond under pressure to compete by showing and creating all they can in an effort to win the business.

The client request for proposed work and the agency response should not be a source of angst. With a clear definition of the financial opportunity the prospective client represents, agencies should make informed and right-sized business decisions as to how much to invest in business development, defined as the work they want to do, create or propose. These investments are expected and ordinary in general business practices everywhere.

However, there are several potential IP pitfalls to avoid in the review process. According to the recently published Mirren Report, “Agency Review of New Business Consultancies,” this issue is a source of frustration for agencies that participate in consultant-led reviews.

Abuses to process do occur and damage all parties involved. One source of angst
are intellectual property rights, maybe because of the seemingly intangible nature of a good idea. 

The first abuse on the part of clients who shop for new agencies is to wrongly assume that an idea or work product once presented to a client is available for a client to use in some form outside the actual hire of that agency. The second abuse by clients is to assume that a nominal amount of money provided by the client company to competing agencies entitles the client to ownership of the ideas created as part of the process. Monies offered by client to an agency to defray agency travel expenses or fund out-of-pocket costs for research are sometimes warranted, but cannot be a veiled guise for another agenda.

Assumptive ownership practices are unacceptable in that they devalue the agency’s intellectual property and they doom the client to fail. A random idea, tagline, or even campaign secured by the client and then executed outside of a partnership with those who created it is a recipe for disaster. The desired creative concept is never a silver bullet, but more likely to be a short-term effort, or a one-off piece of noise in the market, falling short of a strategic and integrated brand building effort the advertiser probably needs. If taken or purchased from one agency and assigned to another, the idea or creative work is often derailed or sabotaged and grows more expensive in the end.

Agencies, too, abuse the confidentiality and intellectual property of client information when, in any attempt to recover business development costs in a review they did not win, they stealthily shop their wares among a client’s competitors, further eroding any perception of being a trusted partner now or in the future.

Here are two actionable business practices to address the IP issue:

A better practice: Non-disclosure agreements are generally exchanged early in an agency review process to facilitate a more robust conversation between consultants, clients and agencies. These tend to be boilerplate agreements exchanged by anyone from legal entities or administrative personnel in a rush to get into the review.

These legal agreements should be reviewed closely. They can be better written to definitively include not just existing factual information about the parties, but all reports, correspondence, documents, data and recommendations relating to the work produced during the review process. Information that is indeed protected as proprietary and or confidential is not to be shared with third parties without consent. If designed and executed as mutual agreements, both parties are usually agreeable to signing. If the agreement is violated, there is a course of legal action for the injured party.

A best practice: Secondly, it’s incumbent for search consultants who lead these engagements to include in their letter of agreement with a client a specific provision that stipulates that the client company agrees that the right to the intellectual property created by the participating advertising agencies during the consultant-led agency review remains the property of the advertising agency until that point which it is contracted for hire. Agreement to this principle upfront as condition of the consultancy engagement establishes the terms by which the review is conducted. If a client organization is not willing to agree to this provision, it means it sees a different purpose to the review.

Consultancies can earn the respect of clients and agencies by exiting those byzantine agency review situations that put all parties in a compromised position. This is an important mind-set and discipline to adopt during stressed economic times when it is tempting to work under unfavorable terms and lose sight of higher ground. A consultant worth his salt should take up the prickly IP issue early, clarify the better industry practice, or respectfully decline the search engagement.

Lorraine Rojek is the founder and president of The Rojek Consulting Group. She can be reached at