Meerkat was not the first pitch-losing agency to spot uncanny similarities between its presentation and the “client”‘s subsequent campaign. For the story and some tips as to how to avoid such ‘no win’ scenarios.
Topic: Pitching for Business
Who: Vimto Soft Drinks and Meerkat
Where: Warrington County Court
When: July 2003
Vimto soft drinks and Meerkat finally settled a dispute which followed Meerkat's unsuccessful pitch in December 2002 for Vimto on-pack marketing activity. Prior to its presentation, Meerkat had negotiated with Nintendo to develop a joint Vimto promotion, and it was this which it presented to Vimto at the pitch. Meerkat didn’t get the job, but despite this, Meerkat claimed that Vimto went on to use the concepts which Meerkat had presented, despite handing the business to rival Geoff Howe Marketing Communications.
After Meerkat raised the matter with Vimto, the soft drinks maker offered Meerkat £1,000 as a goodwill gesture. Meerkat declined the offer, however, and in the absence of any better terms being made available, issued proceedings in the Warrington County Court. Although more details are currently unavailable, one imagines the proceedings might have been for breach of confidence and/or copyright infringement.
The issue of proceedings clearly concentrated minds, as in July 2003 it was announced that an out of court settlement between the parties, on undisclosed terms, had been concluded.
Why this matters:
Graham Greene, Meerkat Chairman and Partner, was reported as saying 'Meerkat's experience demonstrates just how easily an agency can fall victim to this type of client behaviour. If Meerkat had not pursued Vimto, we would have been guilty of letting down our whole industry'.
It was clearly felt that the cost of issuing and pursuing proceedings was justified by the point of principle, although litigating on principle is always something marketinglaw will advise its clients to approach with extreme caution.
This story is not a new one, and it will doubtless not be the last time that a disappointed agency detects glaring similarities between the material it has presented and subsequent marketing by the client it did not win.
How can agencies and clients protect themselves from spats of this kind?
Two possible solutions are first of all the signing of a non-disclosure agreement before the pitch occurs. Even in the absence of such an agreement, it is strongly arguable that a pitch is a confidential scenario in which presented material may not be used by the prospective client without the presenting agency's prior permission. However, having it in writing and signed puts the matter beyond doubt.
Another solution, which, perhaps understandably, tends to be less attractive to clients and agencies, is for the client to pay a pitch fee to each of the presenting agencies as part of a written contract in which the agency assigns all rights in the pitch material, then and there, to the prospective client.
Whatever solution is chosen, it is also always a good idea for the agency to mark all documentation and material presented 'Private & Confidential', including the copyright notice with the year of first publication, the © and the full corporate name of the agency. It might also add on every document, a message such as 'Property of [name of agency] not to be used, reproduced or shown to any third party without the prior written permission of [name of agency].