Case No. IP-2021-000111

79.Ms Kicul’s evidence is that she did not know of, see or hear about FFD until the Claimant made allegations that the 2019 Advert copied her book on social media in November 2019. She says she asked all of the small number of JLP employees who worked on the 2019 Advert and Excitable Edgar (listed in her witness statement) if they had seen FFD before the 2019 Advert was released and they confirmed they did not. She made the same enquiry of Nosy Crow who gave a similar confirmation.80.In oral evidence Ms Kicul said that the legal team at JLP had undertaken research into books containing stories about dragons, and cleared them all, but was unable to give details about how that research was undertaken. There is no evidence or disclosure on the point and so there is no documentary evidence as to exactly which books were looked at by JLP (as opposed to adam&eveDBB who recorded their process in the Research Schedule) and what was found in the search. However, given her evidence that she made specific enquiries and neither she nor any of the JLP team members involved in the 2019 Advert and Excitable Edgar had heard of FFD before November 2019, if the JLP legal department did turn up FFD in a review they do not appear to have raised any concerns about it with Ms Kicul or her team. I am satisfied that on the JLP side, none of the team had previous access to FFD and cannot have copied it.81.Mr Brim and Mr Billingsley also state that they had not seen and did not know of FFD until after the Claimant’s initial complaints. Mr Brim said that he did not think there was any truth in her complaints “since I knew our idea had been created independently, at least in one form before her book had been published, and at no point in the creative process had anyone within our agency suggested to me or as far as I know anyone else that they were aware of this book”.82.Ms Kicul says that JLP is sensitive to claims that the Christmas Adverts are based on published books, as they have had similar allegations made in the past, so she asked Mr Billingsley during the course of development to ensure there was “clear water” between the 2019 Advert and any other stories featuring dragons or dragon illustrations. She says that he told her in around July 2019 that adam&eveDBB would do a search to ensure there was nothing that someone might say JLP had copied. 83.adam&eveDBB have disclosed a 45-page Research Schedule of about 90 children’s books involving dragons that they reviewed and cleared. Some of the entries have a red star beside them, which Mr Billingsley explains indicates that adam&eveDBB actually bought the book, to double-check that they had not inadvertently created something that was similar. This document is titled “Dave – PALS Research”, and Mr Billingsley refers to it as a research document compiled as part of the due diligence process that his account managers typically embarked upon once they knew that a certain creative idea was a front-runner.84.One item on the Research Schedule is FFD, but Mr Billingsley says FFD was added after they had heard about the Claimant’s complaint, which he suspects was the first time that anyone was aware of the existence of it. This is supported by the document itself. It was created as a Google Slides document which discloses the history of its creation and amendment. This shows that the document was created on 22 July 2019, most of the books listed were added to it on or before 1 August 2019, and the very last entry was that relating to FFD, which was only added between 14 and 18 November 2019. There is no red star against FFD, and Mr Billingsley believes this indicates that the agency did not buy a copy of FFD at this time, but it did later, after the Claimant sent a legal letter to JLP in 2020.85.The Claimant accepts what the Google Slides history shows about the document’s version history and does not suggest that the reference to FFD was added to the Research Schedule earlier than indicated. She submits that she has no evidence about when and how a copy of FFD was purchased by adam&eveDBB, and neither Mr Billingsley nor Mr Brim could assist with that in cross-examination, but I think this ignores Mr Billingsley’s written evidence about the absence of the red star on the Research Schedule. I am satisfied on the balance of probabilities that adam&eveDBB did not buy FFD until sometime after FFD was added to that document in mid-November 2019, as Mr Billingsley suggests.86.Mr Billingsley says that the Research Document was created by the account management team and never used by or even shown to the creative team, so far as he was aware. Mr Brim confirms that he does not recollect ever seeing the Research Document before the litigation process commenced, and that it was not part of the creative process of the 2019 Advert, saying “Trawling through children’s books was simply not part of the process of creating the Christmas Advert or any creative work. I do not believe that anyone involved looked at any dragon-themed children’s books for creative inspiration, and certainly none were mentioned to me as part of creating the outline or in any way in relation to the [2019] Advert… I can categorically confirm that it is an original creative work that was the result of hard work and creativity of myself, my colleagues at adam&eveDBB, Dougal [Wilson], Untold and JLP”.