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

The Shopkins brand also included world themed products. In addition, the Gift’ems toy (which was launched in August 2016) featured a range of surprise collectible doll figurines which related to different cities from around the world. As with Shopkins, the Cabo founders were aware of the similarities between Worldeez and Gift’ems during the design process: on 15 August 2016 Mr Sivner wrote a dismayed WhatsApp message: “Gutted boys please read it’s the same concept as worldezz”. Mr Michaelson sought to brush this off, saying that the Gift’ems doll was just a “city doll” with minimal reference to the country represented. Mr Sivner was not, however, persuaded, replying “The concept is the same mark so will the retailers buy both??”. His comments were, as it turned out, prescient: when Worldeez was launched, Tesco was apparently uninterested because it had previously taken Gift’ems, which had sold badly (see §103 above). The world theme collectibles already offered by Shopkins and Gift’ems were also noted by one of the toy companies approached by Cabo to discuss international distribution (see §639 below).

Aside from product innovation, the other factor considered in some detail by the experts was the play value of the product. Ms Munt considered that the Worldeez toys offered considerable potential for imaginary play, referring to the key unlocking element of the packaging and the characters for each featured country. She accepted, however, that Worldeez did not reach the same level of sophistication as LOL Surprise, which was a larger mini-doll with far greater play value. Mr Harper’s view was likewise that Worldeez had more limited play value than LOL Surprise, given the numerous additional features of the LOL Surprise dolls: their limbs and head could be moved, they could be dressed and undressed and fed with water from the bottle, the dolls could either cry, spit or pee, and some dolls also changed colour when placed in water.

Mr Harper agreed that the unwrapping experience of Worldeez, including in particular the key unlocking element, was engaging, and when put to him in cross-examination he agreed that this was better than the packaging of Shopkins. But he thought that Worldeez had more limited play appeal than Shopkins. That was, in particular, Shopkins featured accessories such as a shopping trolley which formed a central part of the play experience, as reflected in Shopkins’ marketing. By contrast, while the Worldeez range included a scooter, a car and a bus, these were figurines rather than accessories. The Worldeez play value was therefore largely focused on the unwrapping of the product and the collection of the range of figurines. His ultimate opinion was that Worldeez would never come close to matching Shopkins’ success, both for product/marketing and commercial reasons. There was no contrary evidence from Cabo on that point (as discussed below, Ms Munt’s evidence on Cabo’s likely commercial success was very limited).

Mr Harper’s written evidence also compared Worldeez to various other collectible brands on the market around the same time as Worldeez. These included, in particular:

Ms Munt did not compare Worldeez to Mash’ems/Fash’ems or Num Noms, and said very little about Hatchimals other than noting that Worldeez was more comparable to Hatchimals than LOL in terms of sophistication. She agreed that Gift’ems was a similar world-themed collectible, albeit that it was based around a mini-doll rather than products from the countries represented, and she noted that Gift’ems had particularly sophisticated packaging which showcased the doll.

Overall, therefore, the evidence as to the quality of Worldeez indicated that Worldeez was an appealing and well-executed collectible toy, but that its main innovative element was its packaging. The figurines themselves were very similar to the Shopkins concept, and the world them had been used already in multiple previous collectible toys. The weight of the evidence indicated that Worldeez had more limited play value and was likely to be less successful than LOL, Shopkins, Mash’ems/Fash’ems and Num Noms, and that Hatchimals, while a comparable product, was more successful than Worldeez would have been. The most comparable product was perhaps Gift’ems. Notably, that was not a particularly successful product, ranking 37^th among brands of playset dolls and accessories in 2017 based on the available NPD data.

There was some debate as to various product defects which emerged with Worldeez. There was a known issue with the perforation of the packaging, which was hard to open. This was noted in various of the WhatsApp chats between the Cabo founders, including a comment on 8 June 2017 from Mr Michaelson that “[w]e could do with getting Tiana a Stanley knife”. This was not, however, a problem unique to Worldeez; indeed there were videos of LOL Surprise being unwrapped, where the unboxers found it difficult to remove the wrapping. Cabo did not, moreover, receive any customer complaints about the ease of unwrapping. I do not consider this to be a major issue with the appeal of the product.

A more significant issue was the instances of globes containing two identical figurines, which the Cabo founders were aware of prior to the launch of Worldeez. Mr Michaelson sent an email to Cabo’s marketing agent on 17 April 2017 ahead of the filming of the first Tiana video, saying that Cabo was due to receive a shipment of globes from China, but “One major issue is that the 2 mystery items in each globe are going to be identical!” This issue did not appear to have been resolved (or at least fully resolved) by the time Worldeez was launched in July, because Cabo did receive subsequent complaints from customers about this. While it is entirely normal that purchasers of collectible toys will end up with some duplicates in their collections (as Mr Mowbray noted in his evidence), the problem in this case appears to have been that the instructions to the Chinese factory did not make sufficiently clear (at least initially) that each globe was to contain different items.

There were also customer complaintsregarding globes containing no figurines, and broken globes. It appears that Mr Cohen discussed problems with the globe opening mechanism with the Chinese factory which manufactured the products, but this could not be improved for the initial batch of globes which had by then already been finished.

Theevidenceof customer complaints itself should not be overstated: the overall number of customer complaints was small. The main issue, however, is that the materials before the court, including internal correspondence, indicates that the Worldeez toys were rushed to the market without sufficient quality control in advance, leading to problems being addressed in the course of the production process after initial batches of the globes had already been manufactured.