After the FA rejected its great idea of making the three English lions into cartoon characters, Interfocus was amazed to see the idea being used by the FA through another agency.
Who: Interfocus and the Football Association
When: August 2002
In the year 2000 marketing agency Interfocus presented to Football Association concepts for use of characters based on the three English Lions for marketing and educational materials. At that time the FA decided not to proceed with the idea, but Interfocus were surprised when around a year later the FA unveiled three "English Lion" mascots just before England's World Cup qualifying tie with Finland. Whether or not the FA signed a Non-Disclosure Agreement with Interfocus before the Agency presented the FA with their ideas for the lions is not clear from the reports, but at all events, Interfocus brought proceedings against the FA for breach of confidence and, depending on how similar the FA lions were to Interfocus' original presentation, perhaps breach of copyright also. Those proceedings have now apparently been settled by way of a payment by the FA to Interfocus of a figure which has been reported in the press as amounting to a "substantial six figure sum".
Why this matters:
Although it is clearly preferable to put the matter beyond doubt by having the parties sign a Non-Disclosure Agreement before any concept is presented by an agency to prospective client, the chances are that even in the absence of such an agreement, the Court would take a dim view of any subsequent use of that concept by the prospective client without the prior written consent of the presenting agency.
The concept being presented has to be sufficiently worked up to have clear commercial attractiveness, however, for the law of confidential information to operate. Furthermore, for a breach of copyright action to be viable on the part of the agency, the concept as eventually used by the client must be sufficiently close to be characterisable as a copy of a "substantial part" of the agency's presentation.
Whether or not these requirements were satisfied in this particular case, the FA clearly felt that Interfocus had a sufficiently arguable claim to warrant the agency being paid out in a settlement which presumably entailed all relevant rights in the lion characters being irrevocably vested in the FA.