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

Mr Laughton also telephoned Smyths on either 23 or 24 May 2017, to find out whether they were stocking Worldeez. Mr Laughton accepted that this discussion – and his discussion with the other retailers he called then – would have been similar to his call with Mr Brocklehurst, and that he would have said that Mr Larian believed that the Worldeez globe infringed MGA’s patent. When asked whether he would have communicated Mr Larian’s policy of not supplying LOL Surprise to any retailers interested in stocking the Worldeez globe, Mr Laughton was initially evasive, but he eventually agreed that he would have done so.

Given the terms of Mr Laughton’s email to Mr Larian on 24 May 2017 claiming that he had spoken to all the major retailers (§136 above), it is in my judgment highly likely that Mr Laughton did indeed make very clear to Smyths (as he and Mr Larian had made clear to The Entertainer and TRU) that if Smyths stocked the Worldeez globe it would not receive supplies of LOL Surprise. It is also in my judgment likely, on the basis of that email, that Smyths agreed not to stock the globe. Mr Smyth’s evidence, in his witness statement, was that he did not recall any threat or coercion by MGA in relation to the stocking of Worldeez by Smyths; but as already noted that evidence needs to be treated with caution given that Mr Smyth was not cross-examined. The conduct of Mr Larian and Mr Laughton at the time renders it highly improbable that they would have exempted Smyths from the very clear line that was being taken in relation to The Entertainer and TRU.

Mr Cohen said in his first witness statement that Smyths cancelled the order it had placed for Worldeez, but (as set out above) he accepted in cross-examination that Smyths had not placed an order for Worldeez prior to MGA’s intervention; there was therefore nothing to cancel. It is, however, common ground thatSmythsdidnot go on to place any orders of the Worldeez globe; nor did it take the 5- or 10-pack Worldeez products.

Mr Smyth’s explanation, in his witness statement, was that this was because of Singleton’s history as a close-out company, and because the Worldeez product was not of sufficiently good quality. That explanation is not consistent with the contemporaneous emails up to 23 May 2017 (§§98–100 above) indicating ongoing discussions on an order to be placed for Worldeez, which then evaporated at precisely the time that MGA intervened. The more likely explanation is that although Smyths did not immediately confirm an order following the meeting with Cabo, it was about to do so around 23 May 2017, but then decided not to proceed after MGA had made it clear that LOL Surprise would not be supplied to any retailer that stocked the Worldeez globe.