HP-2020-000016 - [2025] EWHC 1451 (Ch)

Given my conclusion on the VBER, I do not need to address MGA’s alternative argument that even if the VBER did not apply, any agreements that toy traders would not stock Worldeez were exempt under s. 9 of the 1998 Act and Article 101(3) TFEU.

For completeness, however, if it had been necessary to address this issue, MGA’s argument on this point was hopeless for at least two reasons. First and foremost, MGA’s argument rested on the proposition that the agreements (if there were any) contributed to improving the production or distribution of goods and the promotion of technical and economic progress, by preventing “free-riding” on its investment in LOL Surprise. That argument in turn rested on MGA’s repeated contentions that the Worldeez globe was a “knock off” of LOL Surprise. I have, however, already rejected that argument as a justification for MGA’s abuse of its dominant position. It fares no better in the context of the unlawful agreements claim. If the suggestion is that Worldeez was passing off LOL Surprise or that MGA considered that to be the case, I have found that MGA did not hold any such genuine belief, nor did the Worldeez globe in fact pass off LOL Surprise.

Secondly, MGA claimed that the agreements did not impose restrictions that were not indispensable to the attainment of the objectives. That is belied, however, by the fact that MGA maintained its objection to the Worldeez globe even after the packaging was redesigned, despite the fact that MGA is now unable to put forward any basis on which the redesigned packaging could have been regarded as a misrepresentation of the trade origin of Worldeez.

There is therefore no credible basis for an exemption under s. 9 and Article 101(3), even without considering the other criteria for the application of those provisions.