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Saturday, May 25, 2024

In Design

By Martin Bunce, Director and founder, Tin Horse
Invention, new ideas and breakthrough unique innovations are all part of how we value design. Quantifying this value is always difficult. Indeed, valuing anything in the wake of Brexit, with ever-fluctuating currency exchange rates, is a challenge.
But let me seek some empathy, and maybe help to clarify a delicate contractual point that designers and clients must negotiate.
As designers we bring a number of things to the FMCG party, high on everybody’s list being ‘creativity’. It’s most likely to be the measure upon which we succeed or fail, yet it can also be the most illusive to define, particularly when you’re crafting a service agreement.
The Design Business Association (DBA)’s Design Effectiveness Awards try to establish criteria that make the quality and value of creativity more quantifiable, but only after launch. We find that the real value of intellectual propery comes through achieving return on investment (ROI) over time. We call this Effectiveness for Good.
Intellectual property, and the rights we typically pass to our clients in return for well-fought fees, is pretty much the norm as a mechanism of remuneration for consultancies working across FMCG. Most projects generate this IP in spades but not all of it actually makes the market. The specific value of any morsel of IP is extremely hard to value – that is until it has been picked out, nurtured through develop-ment, patented and proven in market to provide significant competitive advantage for a product in high demand – in volume or price. For clients the risk is clear: Before they can extract value of our IP they must invest not just in design fees, but also in R&D, production, supply chain and communication along with legal protections via patents and design registration.
Here’s an example of how a classic IP clause might be worded: “Designer warrants the client against any claim by a third party relating to the assigned rights; that the rights do not infringe any intellectual nor industrial property rights of any third party and will be responsible for any claims in respect of any conflict that arises.”
Warranting is heavy stuff! As designers, it means we’re making more than a politician’s promise that the ideas we share in delivering creativity are original and not the same as an idea that someone else may have dreamt up.
This type of clause suggests that we may, either intentionally or accidentally, copy someone else’s idea. Without conducting patent searches, we have no way of asserting that what we believe to be original, is indeed free from conflict with a third party. I can absolutely swear that whilst we don’t ‘copy’, we have indeed been known to ‘intentionally’ use someone else’s idea. Let me explain…
Sometimes we simply want the best thing for the consumer and the client. Sometimes that ‘thing’ already exists. We may well be creatively re-appropriating it, perhaps the product designer’s equivalent of sampling, but the solution may only stand on the legs of someone else’s intellectual epiphany. To do our job well and bring the value our clients demand we must have the freedom to do this as part of the creative process. Rest assured, we always let our clients know when we believe an idea may be linked with a third party’s rights.
Who ultimately is taking the risk and who ultimately benefits from the rewards IP brings remains balanced on a tight rope.

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