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

As an alternative to launching the globe in the main toy retailers, Mr Sivner contacted Mr Bobby Arora, owner of B&M, a large discount retailer chain which did not stock LOL Surprise (and for which, as set out above, Mr Laughton had expressly confirmed that no stock would be available). They discussed Cabo’s issues with MGA, and Mr Arora expressed interest in stocking Worldeez at B&M. The Worldeez globe then launched in B&M stores on 1 July 2017, with a wholesale price of £1.50 and retail price of £2.99. Its launch was accompanied by a Tiana video filmed in one of the B&M stores, which got around three million views on her channel.

The launch did not escape MGA’s notice. On the day of the launch, Mr Laughton noticed an advert for Worldeez at B&M, and (apparently before speaking to Mr Larian about this) fired off an email to Mr Arora saying “I’m away at the moment but you might want to call me on Monday re your purchase of Worldeez. I’m afraid this is going to be a real problem”. He then forwarded the advert to Mr Larian, leading to the following exchange:

“LAUGHTON: What you want me to do? I know the owner of this group

LARIAN: Nothing. Don’t sell them LOL

LAUGHTON: Nothing Isaac ??? The other retailers will be asking how they can do this? … Are you saying legally all our retailers can buy this?

LARIAN: It will die fast. I don’t want to waste legal fees.

LAUGHTON: But did you see how many they have sold Isaac? What am I to tell Entertainer and Smyths and TRU when they all rung on Monday?

LARIAN: will ask the lawyers. You should tell entertainer and Smyth if they buy knock off, they don’t need the real thing. We are truly oversold by at least 3 million pieces. Send a couple of samples here please.

LAUGHTON: I will. It hope this at 2.99 won’t damage my own lol business”

On a separate email thread Mr Laughton again asked Mr Larian to “Let me know Monday what to do re worldeez – really don’t want them in my market.”

Initial sales of the Worldeez globe at B&M were reasonably good, and on a WhatsApp chat between the Cabo founders together with Mr and Mrs Sivner and Mr Lazarus, Mrs Sivner reported being told by “Hayley” that the globe was B&M’s top-selling toy over the weekend of 8–9 July 2017. It is not clear whether this was a reference to Ms White or Mrs Michaelson (especially given that there is no evidence that Mrs Sivner was in contact with Ms White); nor is it clear what the basis for that report was. Ms White’s evidence at the trial was that she did not “recall saying it was the number 1 toy, because I don’t think it was the number 1”. In these circumstances I do not consider that it can be inferred, from Mrs Sivner’s WhatsApp message alone, that Worldeez was indeed B&M’s top selling toy at that time. Success on that scale also appears unlikely given Mr Arora’s comments a little over a week later (set out below) as to the poor sales of the product.

The contemporaneous materials indicated that by 13 July 2017 B&M was selling around 2,000 units of Worldeez per week. Ms White in her evidence described that as “very high” in terms of unit numbers, and said that the globe was a “good line”, but she noted that the sales were well below B&M’s expectations even when they later increased:

“I feel like we were disappointed in terms of we had been sold this story that – by Marc Sivner – this was going to be the biggest hottest new brand. You will sell 20,000 globes a week. So even though we are selling 3,000, 4,000 a week, it’s a good line, I think we were disappointed in the sales of it.”

It is apparent, moreover, that the 5- and 10-packs did not ever sell well. On 4 July 2017 Ms White reported to Cabo that the sales of those were “quite poor” and on 19 July she described sales of the 5-packs as “dreadful” and said that sales of the 10-packs “still aren’t great”, such that she would only re-order them at a lower price.

On 19 July 2017 Cabo emailed Mr Arora suggesting a further marketing video featuring Tiana in a helicopter. Mr Arora’s response was that:

“Sales have been poor so I believe this is 100% necessary. …

Alternatively if sales don’t pick up, we have to have all stock collected and the account debited + handling costs.”

The new Tiana video was then put online on 29 July 2017, and was immediately very successful, getting three million views on its first day; it ultimately went on to gain around 20 million views. It is common ground that this video was an impressive piece of marketing, and MGA acknowledged it as such, both at the time and in its evidence at the trial.

Prior to the release of that video, sales of the globe in B&M had increased somewhat, to around 3,500 a week by 25 July 2017. Cabo remained disappointed, with Mr Sivner reporting “Only selling 3500 a week. Not fabulous”. Mr Michaelson and Mr Cohen’s reactions were to suggest that B&M’s figures were inaccurate, and that sales must have been better than reported. There is, however, no evidence of B&M suppressing or underreporting their sales figures. After the helicopter video was released, sales of the globe peaked at 4,500 units of the globe in the second week of August.

An internal MGA email indicates that MGA was continuing to monitor the sales of Worldeez. On 10 August 2017 Deyanira Rubio emailed Mr Laughton forwarding one of the videos promoting Worldeez, noting “I am sharing this you tube video, of Worldeez, they said that is selling incredible in UK and Europe”. Mr Laughton replied “Only selling in a discounter in UK (B&M Bargains) we are the leading brand in UK so making it extremely hard for them to try and get real estate. As far as I’m aware it’s not in Europe”.