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

Fecha: 16-Jun-2025

The parties’ submissions

The parties’ submissions

423.

Cabo identified six specific emails which it said included threats of patent infringement:

Mr Larian’s email to Stuart Grant at 07:33 PDT on 23 May 2017, “Please don’t buy knock off. We have a patent and will take action against the copycats” (§117 above).

ii)

Mr Larian’s email to Stuart Grant at 08:22 PDT on 23 May 2017, “We do have patent and copyright and we will take legal action and protect our IP” (§118 above).

iii)

Mr Larian’s email to Stuart Grant at 09:24 PDT on 23 May 2017, “We have a patent for this concept of layers of surprise in a ball. And this item has even copied the color of our balls as well as the shrink wrap in clear intent to palm off our good will and trade mark and trade dress. … We invest millions in creating original ideas and innovations and will vigorously protect them” (§120 above).

iv)

Mr Larian’s email to Stuart Grant at 18:15 PDT on 23 May 2017, “We will take action against Sinco Toys and any other parties involved to protect our IP” (§122 above).

Mr Larian’s email to Stuart and Gary Grant at 05:45 PDT on 24 May 2017, “we will stop copycats and protect our IP Worldwide. We expect our friends and partners to respect our IP rights” (§124 above).

vi)

Mr Larian’s email to TRU on 24 May 2017, “We have patent pending and full copyright and trade dress protection on the LOL concept. We are told that TRU (at least in the UK) is buying this knock off. We are taking legal action against this company in the UK. As we speak” (§137 above).

424.

In addition, Cabo said that oral threats were made by Mr Laughton to each of TRU, Smyths, Argos, Tesco, Sainsbury’s and Asda on 23 or 24 May 2017 (§135–137 and 149 above). Cabo also contended that oral threats were made to AB Gee, but I have already rejected that on the facts (§§151–153 above) so do not need to say anything more about that.

425.

MGA said that when read as a whole, including with the cease and desist letter which was forwarded to The Entertainer on the evening of 23 May 2017 (PDT) the emails to The Entertainer would not have been understood as threatening patent infringement proceedings against either The Entertainer or Cabo, but would instead have understood the complaint to be one of passing off by Cabo. Likewise, MGA said that the email to TRU would have been understood as threatening passing off proceedings against Cabo. In respect of Mr Laughton’s telephone calls to TRU and other retailers, MGA said that it was improbable that these would have been understood as threatening legal proceedings of any kind.