Case No. IP-2021-000111

is that the 2019 Advert was based on a concept originally conceived and outlined by a leading creative at adam&eveDBB, Simon Lloyd, in 2016. They have disclosed a copy of a four-page document which the metadata shows was created on 24 February 2016 (“2016 Outline”) which they say was one of three very similar versions of the concept created around that time. The Claimant accepts the 2016 Outline was created on that date.11.The 2016 Outline states that the lonely dragon was to be “the story of an adorable young dragon” who is “simply so excited about Christmas that he cannot control the flames from his mouth. He burns everything he encounters” which “is made all the more painful as all he wants to do is get involved in all the festive celebrations”. The dragon in this case appears to be living in a community of dragons in or near woods, which he is shown as flying through. His disastrous encounters include melting a snowman being built by three baby dragons, trying to decorate a Christmas tree but leaving it in cinders, melting a skating lake when trying to skate with friends, and burning wrapping paper when trying to wrap presents. He gains acceptance due to the arrival of a thoughtful gift from his friend, a candle, which allows him to channel his flames to less destructive and more useful effect. He lights the candle, and then “leaps up and lights the street lights as they run down the road. He leans in through the window of a family eating dinner and lights their Christmas pudding”. He also melts the snow on the path of a lady who is trying to clear it, earning her gratitude. At the end, he lights the candlesticks on the Christmas lunch table.12.The 2016 Outline was known within adam&eveDBB as the ‘lonely dragon’ concept. It had, together with other ideas, been pitched to JLP by adam&eveDBB as a possible concept for their Christmas Advert in 2016, 2017 and 2018, but each time JLP had preferred another option. It was pitched again in 2019, with, inter alia, the ending changed from lighting candles to lighting a Christmas pudding, and this won JLP’s approval.13.The 2019 Advert was supplemented by a spin-off illustrated children’s book called ‘Excitable Edgar’. This was commissioned by JLP from a publisher called Nosy Crow and illustrated by an illustrator named Jo Lindley. Ms Lindley drew the eponymous dragon in a simpler style than the manner in which he appeared in the 2019 Advert. Excitable Edgar was made available to purchase in John Lewis shops and Waitrose supermarkets at around the same time as the 2019 Advert was launched, as was a soft toy Edgar produced as part of the merchandising around the 2019 Advert.14.The 2019 Advert was released by JLP online on 14 November 2019 and first shown in cinemas on 15 November 2019 and on television on 16 November 2019. Upon seeing it minutes after release on 14 November 2019, the Claimant immediately alleged on social media that JLP had copied FFD. The Claimant made a formal legal complaint about both the 2019 Advert and Excitable Edgar in December 2020. Following correspondence between the parties’ legal advisors, she issued the Claim in November 2021. THE RESULT15.16.17.18.I have been extremely impressed by the professionalism, thoroughness, care and creativity disclosed in the evidence of all those involved in the creation of the 2019 Advert and Excitable Edgar. They each appear to be at the very top of their game in their respective industries, and I consider they exit this litigation without the slightest hint or shadow of a stain on their creative integrity.19.20.Accordingly, I dismiss the Claim and find for the Defendants on the Counterclaim. The rest of this judgment explains my reasons for reaching these conclusions.THE DRAGONS21.Since the dragons in the 2019 Advert and Excitable Edgar are not identical, I will refer to them in this judgment as “TV Dragon” and “Edgar” respectively. 22.Example images of the dragons from the works at issue are set out in Figures 1 – 3 below. Figure 1 – Fred from FFDFigure 2a, 2b and 2c – TV Dragon from the 2019 AdvertFigure 3 – Edgar from Excitable EdgarTHE PLEADED CASESThe Claimant’s case23.The Claimant claims that:i)ii)iii)iv)FFD was available to the public from 7 September 2017, over two years before the first broadcast of the 2019 Advert and the release of Excitable Edgarv)The 2019 Advert and Excitable Edgar contain striking similarities to FFD, although it is not alleged that either is an exact reproduction of the whole or part of FFD, and the similarities relied on are at various levels of generality;vi)The similarities are identified in paragraphs 16, 17 and 20 of the Particulars of Claim and the Schedules to the Particulars of Claim, Schedule A being the pleaded material features of Fred’s character and situation and Schedule B being the pleaded narrative elements of FFD; andvii)24.Although the Defendants have asserted in correspondence that many of the similarities between FFD and the 2019 Advert derive from the 2016 Outline, the Claimant required the Defendant to prove that was created by adam&eveDBB, its date of creation was February 2016 and that its contents were used in the creation of the 2019 Advert. In fact, the Claimant accepted all these matters at trial.25.However, she maintained at closing the pleaded case that the 2019 Advert and Excitable Edgar reproduce elements of the expression of the intellectual creation contained in FFD which are not found in the 2016 Outline. 26.The Defendants’ case27.The Defendants deny that any part of the 2019 Advert or Excitable Edgar was copied from FFD, or that any inference of copying can properly be drawn. 28.29.The Defendants plead that there are numerous and substantial differences between FFD and the 2019 Advert, and to the extent there are any similarities, they arise from both FFD and the 2019 Advert being based on the same underlying concept of a friendly dragon which finds it difficult to control its fire, and that this concept was developed by adam&eveDBB independently as the 2016 Outline before FFD was published, and so cannot arise as a result of copying. They plead that the 2016 Outline was further developed, without copying, to become the 2019 Advert and Excitable Edgar. 30.The Defendants deny that any individuals from JLP, adam&eveDBB, Untold or Nosy Crow, or the director of the 2019 Advert or the authors and illustrator of Excitable Edgar had any prior knowledge of FFD, nor that there is any basis to infer any prior knowledge of FFD given the limited number of sales that FFD had achieved. 31.The Defendants further plead that during the development of the 2019 Advert adam&eveDBB undertook a search for dragon-themed books before the launch of it, to check if there were any that had similarities to the 2019 Advert, and produced a schedule of their findings (“