Case No. IP-2021-000111

H COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTSINTELLECTUAL PROPERTY ENTERPRISE COURTRolls BuildingNew Fetter LaneLondon Before:HER HONOUR JUDGE MELISSA CLARKESitting as a Judge of the High CourtB E T W E E N:Ms Kendal Watkinson (instructed by Brandsmiths) for the ClaimantMr Michael Hicks (instructed by Lewis Silkin LLP) for the DefendantsTrial dates: 30 and 31 January 2023JUDGMENTHer Honour Judge Melissa Clarke:INTRODUCTION1.The dragon is a creature of myth, dating back to ancient times and found in cultures across the world. As a mythic animal, its appearance, characteristics and personality are not fixed, but have been reinterpreted through the years to suit the purposes and culture of the person utilising it. In the earliest tellings, the dragon was malevolent, destructive or fear-inspiring, and often all three. In the Old Testament, a dragon is used as a cypher for Satan himself and is described in terms including:“His sneezes flash forth light, and his eyes are like the eyelids of the morning. Out of his mouth go burning torches; sparks of fire leap forth. Out of his nostrils smoke goes forth, as from a boiling pot and burning rushes. His breath kindles coals, and a flame goes forth from his mouth.” (Job 41:15, 18-21, King James Bible)2.The idea of dragons sneezing and breathing fire, and that such fire can be put to useful purposes such as kindling coals, is therefore very old indeed. 3.The Claimant is a children’s book author who has self-published three books. One of these is a book called “Fred the Fire-sneezing Dragon” (“FFD4.FFD is the story of Fred, a young dragon who is a school pupil in a school otherwise populated by human characters, including children, adult teachers and staff. Fred is drawn in a cartoon-style and the story is set in a contemporary context. Fred accidentally emits fire when he sneezes, with unfortunate and accidental results, such as burning books and pencils, melting ice-cream in the school tuck shop and setting fire to trees while on a cross-country run. This causes him to be teased and makes him sad. However, his sneezes ultimately save the day when the school canteen oven is broken and he is able to cook the school lunch, gaining the approbation of the school cook and his peers. The story is told in rhyming couplets, and each sneeze is prefaced by a repeated chorus describing what Fred feels, which is intended to be accompanied by actions as illustrated in the front of the book, for children to join in at each chorus.5.It is the Claimant’s case that FFD was first made available to the public at the official book launch on 7 September 2017. Since that date the Claimant has performed live readings of FFD, mainly at primary schools (and those normally in the North-West of England) but also at a few networking events. The Claimant has sold copies of FFD in conjunction with such live readings and events and also on Amazon and her own website, in small numbers. Between its launch in September 2017 and October 2019, she has disclosed sales totalling 914 copies, 709 of which have been via schools, 76 to family and friends, 68 on Amazon and 61 from her website.6.The First Defendant (“JLP”) is one of the UK’s best known retailers through its department store brand John Lewis and supermarket brand Waitrose. Every year it releases a lavish television advertisement to support its Christmas offerings (“Christmas Advert”). These are characterised by their high production values and heart-warming messages. Since 2009 the Christmas Advert has been created by the Second Defendant (“adam&eveDBB”), part of the Omnicom group of companies. Up to 2019 the Christmas Advert promoted only the John Lewis brand, but for 2019 JLP decided to use it to promote both John Lewis and Waitrose.7.adam&eveDBB is a multi-award-winning creative advertising agency. It has earned too many plaudits to list, but these include that it has been named Campaign’s Advertising Agency of the Year six times, and at the Cannes Lions industry awards it was named Global Agency of the Year in 2014 and 2018 and Europe’s Top Agency of the Decade in 2020. It has also won multiple industry awards for its work for JLP, which is one of adam&eveDBB’s flagship clients.8.The 2019 Christmas Advert, released on 14 November 2019, was a live-action film featuring an excitable young dragon who can’t help releasing fire, in which the dragon was created by CGI (“2019 Advert”). The 2019 Advert was created by adam&eveDDB (to JLP’s brief and with JLP’s input) who outsourced the CGI aspects to a specialist company called