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

Moreover, to the extent that there was any similarity at all between the background colour of the packaging originally designed by Worldeez and the fact that the design incorporated an image of the “Bella” figurine, those features were both changed on the package redesign, which took place before any of the globes were marketed to the public. The redesign replaced the blue background with white, and removed the image of the “Bella” figurine (see §§155–156 above). The only remaining similarity was the spherical shape. But there is nothing distinctive about the spherical shape of the packaging of a collectible toy: numerous other toys used spherical or similar capsules, as shown in the following illustration provided by Cabo (the blue ball being a generic vending machine ball):

That is presumably why MGA’s comments about the external appearance of the Worldeez globe were, in its closing submissions, confined to the position as it stood under the original packaging design in May 2017. MGA did not put forward any basis on which the redesigned packaging could have been regarded as a misrepresentation for the purposes of a passing off claim.

It is also necessary to take into account the fact that the toy market is characterised by high levels of product awareness. Consumers know what brands they want, and go into stores to buy that particular brand (or rather, more often, children select the particular toy which their parent or other adult then buys). As Mr Harper put it in one of his reports:

“Girls do not go into a store saying, ‘I want a small doll and I want to unbox it’. They get excited about a brand. Certain brands excite them and they are going to buy that brand …”

Ms Munt’s evidence was likewise that sales of collectible toys like LOL Surprise are strongly driven by branding, and that brand awareness by children is very high. Unsurprisingly, in that context, the toy experts essentially agreed that customer confusion between LOL Surprise and Worldeez was unlikely. Mr Harper said that although it was possible that consumer confusion could arise, there were many features that were very different between the brands, such that confusion was “probably unlikely”. Ms Munt’s evidence was that it was “highly unlikely” that customers might be confused, given the “vastly different” product sizes, brands, themes, packaging design/colours and imagery, and brand advertising (among other differences).

MGA contended that the court should give weight to the fact that (it said) the Cabo founders had the intention to deceive in the presentation of the Worldeez globe, or at least knew of the risk and proceeded recklessly. I do not accept that submission. There is no doubt that the Cabo founders looked at the packaging of LOL Surprise and used that, among many other things, as inspiration for their packaging and marketing ideas; and that they were optimistic about the success of a new mystery surprise toy given the previous success of products such as LOL Surprise and Hatchimals Colleggtibles. The contemporaneous documents show, however, that they were well aware that they should not copy LOL Surprise and were endeavouring not to do so.

There is certainly no evidence indicating that the design of the LOL Surprise packaging was copied in order to free-ride on LOL’s success. MGA referred to comments from the Cabo founders noting that the globe “will be packaged in a similar kind of way” to LOL Surprise, and discussing adopting some of the technical solutions used by LOL (e.g. the two layers of shrink wrap). That is, however, a long way from showing that Worldeez intentionally copied the design of the LOL Surprise packaging. Likewise, while Cabo apparently wanted the style of its television advertisement to be similar to that of the LOL advertisement, the content of the advertisements were entirely different, as Mr Harper accepted.

MGA relied on factual evidence from third parties which it said was relevant to establishing misrepresentation. In fact, most of the factual evidence referred to by MGA went no higher than comments on similarity. Mr Lazarus said that he thought the design of the packaging looked similar to LOL Surprise, and there are comments to that effect from him in contemporaneous WhatsApp chats. Mr Hunter of AB Gee thought that the globe was “somewhat similar” to LOL Surprise. Mr Brocklehurst at TRU commented that the globe was “very close to LOL”. One of MGA’s distributors observed that the Worldeez globe was “very similar in the look and concept to LOL”; and Funtastic, a potential distributor for Worldeez, said that the products were “very similar”. MGA also referred to press reports referring to the similarity of the products. None of this suggests a risk that consumers would or might be misled: it merely shows that the two products were perceived as being similar, which is far short of what is required to establish passing off.

The only evidence of confusion, or a risk of confusion, related to the trade origin of Worldeez was scant. There was some conflicting evidence about Mr Smyth’s reaction when he first saw the Worldeez product at the meeting described at §98 above. I do not consider any of that evidence to be reliable: Mr Smyth’s account was not tested by oral evidence at the trial; Mr Michaelson disputed Mr Smyth’s account, but I do not consider him to be a reliable witness; and Mr Lazarus was not at the meeting and gave only a second-hand account of what he had been told by Mr Sivner. MGA also relied on a WhatsApp exchange between the Cabo founders and Mr Sivner and Mr Lazarus on 24 May 2017, shortly after MGA’s initial reaction to Worldeez, in which Mr Lazarus said that he thought that the average person would be confused by the appearance of the globe, noting “Looks confusing to punter. Association with lol”. He said that he had been told that by Mr Beardall at Spin Master. Those were vague and general comments, in the course of a (rather heated) WhatsApp exchange in the wake of MGA’s initial threats, before the packaging of the globe was redesigned to remove the elements that might have been regarded as similar to the packaging of LOL Surprise.

Finally, I note that there is no evidence that any actual consumers were deceived or misled by the appearance of Worldeez into thinking that the product was in some way associated with LOL Surprise.

Considering all of the evidence set out above, in my judgment there was no misrepresentation capable of founding a claim in passing off. Having regard to the clear differences between the products, the evidence of the experts, and the minimal factual evidence of any potential confusion, I have formed the clear view that even in its original packaging the Worldeez globe was not likely to mislead consumers as to the origin of the product. That conclusion is even stronger in relation to the redesigned packaging, which removed the only real aspects of similarity which had previously existed.