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Incentive Today Editorial: SHELL SHOCK


Incentive Today EDITORIAL

Nov/Dec 1994


IT HAD TO HAPPEN – although it would be naive to think that it hasn’t happened before because out-of-count settlements have usually kept the quarrel well out of the industry’s gaze. An agency is to sue its client not, as I say, for the first time, but the issue is one that is close to the heart of all marketing consultancies: the agency claims that the client has stolen (let’s not beat about the bush) promotional concepts which were presented by the agency speculatively and confidentially.

The claim, for £350,000, is being made against Shell UK by Don Marketing, a sales promotion agency which alleges that its client of 13 years has repeatedly used the agency’s concepts without permission and sometimes without payment. Exactly how a business relationship can be maintained over this period in these circumstances remains a mystery and whether or not the allegations are proved also remains to be seen but, whatever the outcome, the case will highlight a concern which, although always close at hand, is usually mentioned ‘strictly between you and me’ or ‘off the record’.

The obvious reason for this hushed confidentiality is the difficulty in proving that a promotional concept has a specific ownership. It is impossible to claim ownership of an intellectual property, which is what a promotional concept is, until the concept is first committed to paper as text and supporting graphics – as of course they are when presentations of concepts are made. But in rumours and stories I have listened to about ‘We pitched for this account, didn’t get the business, but our idea was pinched because the campaign idea ran nine months later’, elements of the original were changed which would then make ownership of the concept exceedingly hard to prove – and litigation costing what it does, many a managing director has sagely thought twice about entering the fray however convinced his team may feel that they’ve been ripped off.

I do not know how widespread the rip-off experience is because the majority will keep schrum for fear of losing favour with other potential clients, I would guess that the incidence of client companies knowingly using promotional concepts without acknowledgement or payment must be very small but one important service to the industry made by the Don Marketing v. Shell UK case is that it highlights a widespread concern and it acts as a reminder to all marketers that promotional concepts are not up for grabs.

Incentive Today. November December 1994

Copy of original article.

(A spelling error in the article has been corrected)

NOTE: Shell subsequently settled the claims in question. 

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