It was waiting to happen. And finally it did happen last week at the Bombay High Court. In a landmark judgment that will surely create ripples in the cocooned world of Indian advertising, Hon’ble Justice BP Colabawalla called out Chinese mobile brand Vivo for airing a TV commercial through Dentsu Impact which was very similar to a proposal made by Ogilvy in a pitch last year.
Ogilvy had dragged the client Vivo and their ad agency Dentsu to court earlier this month through its subsidiary, Brand David. Ogilvy were represented by senior advocate Veerendra Tulzapurkar and advocate Hiren Kamod. The respondents were represented by senior advocate Venkatesh Dhond and advocate Nimay Dave. The ad under dispute – Light Up The Night – features Aamir Khan at a Carnival with a young girl.
The Court found many similarities between the script proposed by Ogilvy’s Brand David and supposedly rejected by Vivo, and the TV commercial that finally aired in September this year, ostensibly as a creative output of Dentsu Impact.
In his order passed last week, Justice Colabawalla directed Vivo to either deposit Rs. 1 crore or furnish a bank guarantee from ‘a reputed bank’ within a week, if it wants to continue airing the ad on television. Vivo got a minor reprieve when the Court allowed it the benefit of the ‘balance of convenience’ which means that Vivo has already spent a lot of money in creating the ad, booking TV spots and airing the ad, and in this festive season embargoing its airing would harm the brand.
The Ogilvy agency claimed losses of Rs. 1-1.5 crore on a film estimated to have cost Rs. 50 crore in creative, production and media, however, obtained no relief on this count. But the Court was abundantly clear that there were inescapable similarities in the film with the Ogilvy script, for sure. “Seeking the advertisement of defendant No.1 in juxtaposition with the script ‘amusement park’, at least prima facie, barring some minor changes, the same appear to be similar,” the judge observed, before listing a few “similarities”:
-both scripts are set in an amusement park
-the two main characters, though different in age, enter the amusement park after it had closed/when it was closing
-the creative device of lights switching on the moment the selfie camera pops out
-the girl sits on a carousel horse and the boy pops out the camera; the moment boy pops out the camera the carousel lights switch on and the boy takes a selfie with the girl
-when they are sitting on a lifeless giant wheel, the boy pops out the camera and the giant wheel switches on and the couple takes a selfie
-every time the boy turns on his phone’s camera and it pops out, the attraction/ride in front of the camera lights up
The ‘boy’ repeatedly referred to above is none else but Bollywood icon Aamir Khan. And the ‘few’ similarities are of course the entire script itself! The defendants though averred that similarity in the script was not an IP infringement, an argument that failed to find favour with the Court.
The Back Story
Last year in October, Vivo apparently called a pitch for the Vivo V17 Pro mobile handset. One of the Ogilvy agencies, Brand David, presented a script titled ‘amusement park’. Many months later, in May this year, the client informed the agency that they had decided not to work with Brand David on evaluation of the pitch presentations. On its part, Brand David responded by telling the client that all work presented at the pitch would remain the IP of the agency.
Vivo approached David one more time in June, asking for a detailed script. The same was submitted. There was no response from Vivo.
Then in September, a Vivo commercial went on air which was almost a frame-by-frame rendition of the David script. Except that the commercial was not made by David. It was ostensibly based on creatives of Dentsu Impact.
Brand David headed to court.
Brand David are brave
It takes a lot of guts and gumption to take a client to court. Especially when agencies have all along meekly submitted to the supremacy of clients and never challenged the oft-repeated drill of an agency pitch where all that clients do is to unashamedly fish for free ideas.
Normally, the cheating of ideas is in bits and pieces. Never as blatant as in the case of the Vivo V17. And clients mostimes assume that they will never be caught out, more importantly never be confronted or challenged.
Some years ago, when I used to represent a large telecom company as their sole concessionaire, we presented an idea of a ‘mobile radio’ to a very well known FMCG giant. The multinat company invited us back for multiple presentations, got a million clarifications and elaborations, called in their own domain experts, got us to meet their supply-chain team … and then told us it was all too expensive. A couple of months later, the ‘mobile radio’ was launched with much fanfare through another vendor, with the call-process tweaked minorly. The radio went onto be a global hit winning tens of awards. I protested to the head honcho of the FMCG major only to be told that there would be other occasions together to make up the revenue loss! No apologies for stealing the idea. No remorse, no regret for tom-toming someone else’s IP as their own. As for my telecom principals, being a listed entity, they preferred not to measure swords with the FMCG giant and get into a PR war.
I have taken clients to court, but almost always for non-payment of dues. I took MS Shoes all the way to the Supreme Court and won a bruising battle after nearly 7-8 years of expensive litigation way back 20 years ago. I filed for a winding up of Punj Lloyd in Allahabad High Court many years back; they eventually paid. I was running Dentsu when we filed for winding up of Thomas Cook for non-payment of outstandings. In fact the dispute led me to a fight with the Advertising Agencies Association of India (AAAI) who refused to back me despite legitimate claims. Thomas Cook settled too but after a lot of bad blood.
So, Ogilvy and Brand David are really brave to have taken the client to court, that too on a matter of intellectual property which is not an easy area to establish valid claims in.
The malaise is deep-rooted.
The Vivo case is seen happening in different modes all the time.
The more common variation (and very legitimate too) is to appoint an agency on ‘retainer’. Juice out all campaigns and creatives in a couple of months. Then sack the agency. I have seen it happen, for example, on HDFC Standard Life where when at Dentsu I produced a game-changing ‘sir uttha kay jiyo’ commercial for the client. It was critically acclaimed and pole-vaulted the brand over its entire competitive set. But barely a month after the ad went on air, the client sacked us, but continued running the campaign creatives for years thereafter. The Marketing Head, who had in fact joined after the campaign had already been created, would be at every other conference/seminar telling everyone how ‘his’ campaign was a winner-all-the-way. Such dishonesty … both commercial and intellectual!
Ideas can be stolen.
Clients are just one part of the problem. There is enough stealing of ideas by employees too within ad agencies.
I know these are issues never openly discussed but there are enough creative guys who carry away ideas they have been exposed to at one agency and then reproduce them in a different avatar at their next employer, passing off the creatives as their own.
I can tell you the real story of atleast one creative guy who once worked for me; joined as a trainee writer; was sacked because of non-performance; but walked away to his next job with all presentation creatives of all the agency’s pitches in his portfolio bag; leveraged the portfolio of others creative work to one promotion and then another, jumping jobs till he was creative director in no time. I had the dubious distinction of sacking the con-man one more time when I took over the reins at Rediffusion many years ago.
Is there a solution?
Well, yes and no.
There is surely a case for registering ideas with a central agency set up by the AAAI. But that may not really work. The sheer volume may be too vast; the whole process may be too time consuming and expensive; and lots of disputes may arise even at that initial stage. The AAAI is unequal in resources to being the apex body for an IP registry.
The easier one is a Code of Conduct for clients and agencies to be enforced by the AAAI and the Indian Society of Advertisers (ISA) prescribing minimum ethics and work practices. This has a better chance of success.
But at the end of the day, if a Vivo is hell-bent on cheating, no one can help an Ogilvy except the courts.
(Dr. Sandeep Goyal expresses his views on industry issues in his blog, calling a spade a spade without fear or favour).