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

On 23 or 24 May 2017 Mr Laughton telephoned the buying director for TRU UK, Andrew Brocklehurst, asking whether TRU planned to stock Worldeez. Mr Laughton’s evidence was that he assumed that he would have said, “We may have a problem with regards patent with regards the balls”. (See the transcript extracted at §439 below, with further discussion of this section of Mr Laughton’s evidence.) Mr Laughton then emailed Mr Brocklehurst on 24 May asking “Any news Andy – I have to report back to Isaac”. Mr Brocklehurst replied, confirming that TRU “won’t be taking the item in its current format” and noting that Singleton was “looking to rework the concept in a way that is acceptable to MGA”.

Mr Laughton then reported back to Mr Larian (still on 24 May):

“I have reached out by telephone to all major retailers and although some were presented it in a different packaging they have all agreed that they will not be taking it in its current format. I believe from TRU that Singleton are looking at changing packaging to avoid issues with us”.

Mr Laughton’s evidence was that this email reflected his conversations with TRU, Smyths, Argos and Tesco. Mr Larian responded “TRU buys and you cut their allocation big time”. He followed this up with a lengthy email to TRU management executives in the US and Canada, including Kevin Macnab (then the president of TRU International) attaching the Tiana unboxing video and saying:

“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.

We will stop shipping original LOL to any retailer who supports knock off.

Please don’t buy knock off.”

That email was untruthful: Mr Larian sent it after he had just been told by Mr Laughton that TRU in the UK was not planning to stock Worldeez. Mr Larian forwarded that email to Mr Laughton commenting “See my email to TRU management and send to their U.K. MD. They buy this knock off and we will stop shipping. No exceptions.” Mr Laughton replied confirming “TRU not buying.”

In Mr Larian’s third witness statement, filed in October 2023, he said that he could “now recall” that Kevin Macnab had called him around late May 2017, and had said that his “independent view” was that “Worldeez was a blatant knock-off of LOL. He told me that he had spoken to Dave Brandon (Chairman of TRU) and told him not to buy the knock-off. Kevin told me that TRU UK would not buy the product either.”

I do not accept that account. The call with Mr Macnab is not mentioned anywhere in Mr Larian’s first or second witness statements, filed in January and February 2022, and there is no explanation in Mr Larian’s evidence of why, over a year later in October 2023, he “recalled” this conversation. MGA said that Mr Larian’s memory was “refreshed” by a privileged contemporaneous document. That document has, however, not been disclosed: MGA offered to waive privilege in the document, but on conditions that Cabo did not accept. Mr Larian’s third witness statement, moreover, made no reference to his memory having been refreshed by any document, but simply claimed that he could now “clearly recall” Mr Macnab’s call to him.

As noted above, when Mr Spector attempted to make communication with Mr Macnab to discuss Mr Larian’s evidence on this point, Mr Macnab said that he had no recollection and did not wish to become involved. Since Mr Macnab has not given evidence on the point, I do not place decisive weight on that exchange of messages, but it adds to the general picture of an account given by Mr Larian which is self-serving and unsupported by the other evidence before the court.

Mr Larian’s account of this conversation is also at odds with the contemporaneous evidence indicating that TRU was in fact interested in stocking Worldeez at that time. On 6 June 2017 Mr Brocklehurst emailed Mr Laughton asking to speak to him about Worldeez. A week later, Paul Mitchell, a consultant engaged by Singleton who was previously head of the toy buying division at TRU, emailed Mr Sivner to report on an email exchange with Mr Brocklehurst regarding Worldeez, in which Mr Brocklehurst had said that “the head of TRU US is going to discuss with Isaac to see if they can get an agreement”.

On 5 July 2017 Mr Laughton emailed Mr Larian saying that “Had call from TRU merch manager who is asking what we are doing, they aren’t buying but want to know our stance before making a decision”. There is no evidence of any response to that by MGA, but the email indicated that TRU remained interested in stocking Worldeez, if MGA had lifted its objections to the product.