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

As set out in Table 7 above, the moderate success model indicated that Worldeez would have been significantly loss-making, including on international sales. The further calculation provided with MGA’s closing submissions assumed that Worldeez would have been twice as successful as the average product in Mr Parker’s basket of comparators, and on that basis suggested (limited) profitability on international sales, but overall losses over three years when domestic losses were taken into account.

Other than the various points on Mr Parker’s costs and revenue assumptions which were corrected in the updated figures provided with MGA’s closing submissions, Cabo’s main criticism of this model was that by basing itself on an average of the performance of the top products in all newly-launched brands post-July 2018, it took no account of what was known about Worldeez’ performance. Given that the vast majority of the products in the comparator set generated less revenue in year 1 than Cabo’s actual performance, in a situation where Cabo’s market access was impeded by MGA’s conduct, a straight average across all of the comparator products would not (Cabo submitted) provide a reasonable picture of what Cabo might have expected had it been able to pursue its original launch plans unimpeded by MGA.

Mr Parker maintained that his moderate success model was more reliable than his significant success model, because “that is the expected outcome of a product you don’t know anything about”. But that misses the point that the commercial success of Worldeez was not a complete unknown. In addition to the extensive evidence discussed above regarding the quality of Worldeez as a product and the operational abilities of Cabo, the evidence in the trial included detailed sales figures for all the retail outlets where Worldeez was sold.

Accordingly, while the moderate success model provides some insight as to the average trajectory of a typical product in the playset toys and collectibles class which enjoyed some degree of initial commercial success, it cannot be regarded as a useful proxy for the revenues of a product for which there is considerable real world post-launch information, including data showing revenues in a competitively constrained situation to have been better than that of most of the products in the comparator set.

MGA’s attempt to address that issue, by providing a further analysis which assumed that Worldeez would have been twice as successful as the average from the comparator set, did not really resolve the problem. As Mr Kuppen put it in his closing submissions on this point, taking an average that is meaningless and multiplying it by two “may give a bigger number but it doesn’t solve the problem with this scenario”. I do not, therefore, consider Mr Parker’s moderate success model to be informative as a model of Worldeez’ expected performance in the counterfactual scenario. Notably, while MGA’s written closing submissions relied on both Mr Parker’s significant success and moderate success models, MGA did not in its oral closing submissions suggest that any significant weight could be given to the moderate success model.