Broadcasting Telecasting (Oct-Dec 1957)

ADVERTISERS t AGENCIES continued W&L GETS PROTECTION FOR IDEA When a client quits one agency and appoints another, do ideas submitted by the first agency but not used or paid for by the client become the property of the advertiser? In what is believed to be an unprecedented decision, a federal court in Philadelphia last week granted injunctive relief to Warwick & Legler Inc., New York, prohibiting Schick Inc., Lancaster, Pa., and its new agency, Benton & Bowles, New York, from using a tv commercial idea formulated by W&L while Warwick & Legler was Schick's agency. Entering the case as a fellow plaintiff was Remington-Rand Div., Sperry Rand Corp., Bridgeport, Conn., another electric shaver manufacturer. In this way, the Schick and Remington-Rand battle of last spring [Lead Story, May 20] entered phase two, but this time, the shoe was on a different foot. The case was heard in late September but was kept quiet by all parties until last week when the New York Times broke the story. It dealt with an idea devised by Warwick & Legler to show, on television, the "closeness" of a shave with "a fine electric shaver." The idea was constructed in such a way, says Warwick & Legler, that it could "just as well" be applied to other media. The "gimmick" originated by W&L: to rub a wad of specially-treated cotton down one side of a male model's face — the side shaved by razor "B" — then repeat the process on the cheek shaved by the Schick. The result, as shown to Schick officials in December 1956, was that "a big glob of cotton" stuck to the cheek shaved with razor "B." The advertiser rejected the idea. On April 1 this year, Schick notified the agency of its intention to resign effective June 15. The account immediately went to Benton & Bowles, the agency of record in May when Schick sued Remington Rand for $5 million in damages. According to H. Paul Warwick, president of Warwick & Legler, this was the chronology of events that led to the Sept. 28 hearing in Philadelphia, resulting in the initial vindication of the plaintiff. On or about April 1, Kenneth C. Gifford, chairman and president of Schick Inc. asked W&L to turn over to the advertiser — in addition to all ideas and materials used and paid for by Schick — "any ideas" conceived by the agency but not used or published during their 18-month relationship. Warwick & Legler refused, Mr. Warwick said Thursday night, "on the basis that this was not industry practice." (To document what he felt constituted "industry practice," Mr. Warwick said, he had his office draft statements and contract clauses as well as official AAAA policies, all pointing to the fact that material conceived by an agency but not used or paid for by the client remain the property of the agency.) Mr. Warwick said that initially the shaver company went along with the W&L documentation, then hedged, but later agreed that Warwick & Legler's position was just and correct. This agreement was written into the termination contract in early April. The account then made its switch to Benton & Bowles. In late June, Warwick & Legler approached Remington Rand with the tv commercial idea and sold that firm the idea for an unspecified sum. Warwick & Legler did not deal with Young & Rubicam, R-R's agency for the electric shaver, but dealt directly with the advertiser. In late July or early August, Mr. Warwick recalls, Schick officials once more contacted W&L, informed the agency that Benton & Bowles had come up with a "similar tv commercial idea" and in light of the termination agreement signed in April, should Schick now decide to use the idea, would Warwick & Legler now give the former client the assurance that it would not make a claim at a later date? Warwick & Legler said it would not and did not and cited the contents of the agreement which reaffirmed the right of an agency to take title to unused or unpublished ideas. Shortly after Schick Inc. was rebuffed by W&L, the advertiser's counsel, Dunnington, Bartholow & Miller, informed Warwick & Legler that the agency could claim no "exclusive rights" to an idea, Mr. Warwick said. Somewhat later still, the agency learned — through a source it declines to name — that Benton & Bowles had produced films for eventual tv showing that embodied the cotton technique. At this point W&L, "having absolute proof of intent," took the matter to court. The case was placed before a federal district court in Philadelphia, Schick being incorporated in the Commonwealth of Pennsylvania. According to Warwick & Legler, this is the first time in the agency's 35-year history that it has felt compelled to take a grievance to court. It was made clear that the agency sought no punitive damages; that it wished only to protect its own creative prerogative and establish a "precedent of sorts." Schick's position is, and has been, that unless the agency incurs substantial out-ofpocket expenses in developing an unused idea and has not been reimbursed by the client, all such ideas automatically become the property of the advertiser. Schick also maintains that the 15% commission earned by the agency pays for all ideas conceived, but Mr. Warwick contends that the commission is earned from media — or published ideas — and therefore does not constitute client payment. Schick, a $5 million advertiser, has been serviced by five agencies over a 6V2 -year span, going to Warwick & Legler in late 1955 from Kenyon & Eckhardt. Before that time, it had been serviced by BBDO and Kudner Agency, all New York. Benton & Bowles officials declined comment, and counsel for Schick could not be reached for comment late Thursday. Mr. Warwick declared that the cotton technique was but one of "several ideas" promulgated by the agency during its IY2year relationship with Schick. The case is not yet closed with the decision rendered last week by Federal Judge J. Cullen Ganey. A final hearing is scheduled for the middle of January. Meanwhile, Schick has been told by the court that neither it nor any of its representatives (advertising agency, distributors, dealers, etc.) may use the original Warwick & Legler idea or any variations based upon W&L's theme. BUSINESS BRIEFLY WHO'S BUYING WHAT, WHERE SPOTS SET • Bymart-Tintair Inc., N. Y.. for new Beauty-Set Curl Creme, last week launched major saturation tv spot campaign in N. Y., preparatory to entering other markets. Over 400 spots per week are scheduled by time campaign is in full swing. One-minute, 20-second and 10-second film spots feature tv stars Vera Ellen and Rita Colton. They will be seen in Atlanta, Boston, Charlotte, Dallas-Ft. Worth, Buffalo, Chicago, Cleveland, Detroit, Los Angeles, Philadelphia, San Antonio, St. Louis, Toledo, Washington, Kansas City and San Francisco. Agency: Product Services Inc., N. Y. BROWNIE BOWS • Kitchens of Sara Lee is using radio spots and tv participations in Chicago at outset to unveil fifth product, chocolate brownie cakes. Announcements have been purchased on WMAQ, WGN, WCFL and WIND and participations on WBKB (TV) and WGN-TV running from Oct. 14 to Nov. 4. (Weekly breakdown: About 35 radio spots and four tv announcements.) Agency: Cunningham & Walsh, Chicago. AURAL ADS • Beltone Hearing Aid Co., Chicago, last Tuesday announced expanded ad budget in excess of $1.25 million effective Nov. 1. Over $500,000 will be spent this fall. Schedule of broadcast participation includes NBC-TV's Today, CBS-TV's Panorama Pacific and spot commercials in undetermined number of key markets. Beltone will also use MBS' Gabriel Heatter Show, ABC's Breakfast Club and Frank Goss News on Columbia Pacific Radio Network. Actual broadcast outlay for campaign was not disclosed. WINTER WEATHER • National Carbon Co. Ltd. (Prestone anti-freeze), Toronto, Ont., has started five minutes weathercasts daily on 86 Canadian radio stations. Agency is Locke, Johnson & Co. Ltd., Toronto. CANADIAN CAPERS • Procter & Gamble Ltd. (Cheer), Toronto, and Gillette Safety Razor Co. Ltd. (Toni division), Montreal, are each sponsoring one-third of new monthly Wayne & Shuster Show on all English-language Canadian tv network stations. First one-hour comedy program was telecast Oct. 17. Agencies are Young & Rubicam Ltd. (P & G) and Spitzer & Mills Ltd. (Toni), both Toronto. MBS NEWS • American Home Products Corp., Whitehall Pharmacal Div. (Anacin), Page 42 October 28, 1957 Broadcasting