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

Fecha: 16-Jun-2025

ISSUES

ISSUES

62.

Cabo claims damages against MGA on three bases: (i) abuse of a dominant position contrary to the prohibition in Chapter II of Part I of the 1998 Act and/or Article 102 TFEU; (ii) unlawful agreements and/or concerted practices contrary to the prohibition in Chapter I of Part I of the Competition Act 1998 and/or Article 101 TFEU; and (iii) unjustified threats of patent infringement proceedings within the meaning of s. 70 of the 1977 Act. The claims give rise to disputed issues of both liability and quantum. In the case of the patent threats claim there is also a question of whether other relief should be given.

63.

The liability issues are as follows:

In relation to the abuse of dominance claim:

The definition of the relevant market on which LOL Surprise was sold by MGA to retailers.

Whether MGA was dominant on that market, having regard to its market share and other relevant factors.

If so, whether MGA’s conduct amounted to an abuse of that dominant position.

ii)

In relation to the unlawful agreements claim:

Whether there were any agreements or concerted practices between MGA and the main toy retailers or AB Gee in relation to the stocking of Worldeez.

If so, whether those agreements (or concerted practices) restricted competition by object or effect.

If so, whether the agreements (or concerted practices) are exempted from the Chapter I prohibition and Article 101 TFEU by virtue of the VBER.

If not exempted by the VBER, whether the agreements (or concerted practices) are exempt under s. 9 of the 1998 Act and Article 101(3) TFEU.

iii)

In relation to the patent threats claim:

Whether MGA’s emails to The Entertainer and TRU constituted threats of patent infringement proceedings within the meaning of s. 70 of the 1977 Act.

If so, whether Cabo is a person aggrieved by the threats.

64.

The causation and quantum issues arise across all of the claims for which liability is found, and are as follows:

Whether the patent threats (if established) had any causative effect on the decisions of the retailers in relation to the stocking of Worldeez.

ii)

The identification of the heads of loss claimed by Cabo.

iii)

Whether Cabo would have traded profitably but for MGA’s conduct, in the counterfactual case.

iv)

The quantification of Cabo’s claim, if causation of loss is established.

65.

The final issue is whether declaratory relief should be given on the patent threats claim, irrespective of whether damages are awarded on that claim or the competition claims.