Do Not Pass 'Go': How a Board Game Decision Is Applicable to Idea Theft Disputes in the Advertising Industry
Do Not Pass 'Go': How a Board Game Decision Is Applicable to Idea Theft Disputes in the Advertising Industry
Do Not Pass 'Go': How a Board Game Decision Is Applicable to Idea Theft Disputes in the Advertising Industry
By David Halberstadter and KattenMuchin Rosenman
May 19, 2022
Summary
The court's discussion of the circumstances under which a board game inventor could become entitled to royalties from the company to whom he pitched his ideas is highly relevant to the relationship between advertising agencies and advertisers, as well.
This article offers a roadmap for how both agencies and advertisers can minimize disputes and examines the potential for subsequent claims of idea theft.
The court observed that under New York law, an implied contract claim based upon the submission of an idea requires a showing of both novelty of the idea and the defendant's use of that idea.
The elements comprising Wexler's mash-up idea - i.e., that each game would combine elements of two preexisting games, the two preexisting games are "Hasbro classics," the name of the new product would utilize the names of its two component games and the collection would be a line of products - were "So common and commercially available in the toy and game industry that a reasonable jury would have to conclude that the idea is not unique and is 'nothing more than a variation on a basic theme.'"[xiii] Having determined that Wexler's mash-up idea was not novel, the court found it unnecessary to consider whether Hasbro used it.
It is routine in the advertising industry for advertisers to solicit marketing ideas from advertising agencies and for agencies to prepare elaborate presentations of their proposed marketing campaigns in an effort to secure an exclusive agency representation agreement.
Many of the marketing ideas agencies pitch to potential advertisers are highly creative and novel; but their presentations may also include more generic advertising techniques and strategies, concepts that are common to the advertiser's particular industry or market, or ideas that derive from the unique characteristics and qualities of the advertiser's own goods or services.
Reference
Halberstadter, D., & Rosenman, K. M. (2022, May 19). Do not pass 'go': How a board game decision is applicable to idea theft disputes in the advertising industry. Retrieved May 26, 2022, from https://www.jdsupra.com/legalnews/do-not-pass-go-how-a-board-game-2516378/