The chronology of events
8.Ms Tang started her business in the sale of serum under the trade name Elixir in about June 2015.9.Ms McIver was diagnosed with stage 3 breast cancer in 2016. Chemotherapy caused her to suffer from severe skin irritation. In March 2017 Ms McIver bought Elixir from Ms Tang for use on her own skin. The product had a formulation created by Ms Tang (“the Tang Formulation”).10.In May 2017 Ms Tang became aware of Ms McIver beyond her being a customer. Ms Tang read on Facebook about Ms McIver’s story and her cancer. The two began to correspond by social media.11.In October 2017 Ms McIver asked Ms Tang whether she could buy Elixir wholesale and sell the product under Ms McIver’s logo. She sent Ms Tang a copy of the logo which incorporated the words “Kate McIver Skin Specialist”. They agreed instead that to begin with Ms McIver would test the market with 5 bottles which were supplied with Ms Tang’s labelling. This featured the name Elixir (“the Original Label”).12.The marketing trial was a success and between October 2017 and April 2018 Ms Tang continued to supply Ms McIver with the product, still with the Original Label, still made according to the Tang Formulation. Ms McIver sold the serum on to her customers.13.In an email dated 29 November 2017 Ms McIver told Ms Tang that she wanted to advertise the serum. Ms Tang’s response included “You can get more information on [Ms Tang’s] website to promote it”.14.In March 2018 Ms Tang and Ms McIver discussed again the idea of Ms McIver selling the serum with Ms McIver’s label on the bottles. Ms Tang was encouraging. In an email dated 21 March 2018 she said“…its easier, if you have a range so you can say, you now have your own skin care range for your treatment. Promote it on Facebook and your website too…”.15.Between April and June 2018 Ms McIver sold the serum to her customers under her own brand. It was still the Tang Formulation supplied by Ms Tang. The label bore the name KATE MCIVER in upper case, the word “Elixir” in prominent script, together with a description of the product, a list of contents and Ms McIver’s email address and post code (“the First McIver Label”).16.In May and June 2018 Ms Tang and Ms McIver discussed alternative arrangements for the packaging of the serum. Ms McIver asked whether it was possible for her to have her own distinctive bottles or packaging. In a message dated 18 May 2018 Ms Tang said:“Possibly say it’s your own label made by an ethical, cruelty free, local company in Liverpool, what do you think? Don’t mention about being exclusive because I am the creator, so copy right stays with me.”17.On 6 June 2018 Ms McIver posted a message on her Instagram account directed to her customers. There was a description of her wedding, the difficulties she had since suffered from her cancer and from her chemotherapy and she continued:The Kate McIver serum was designed to turn my skin around to help my cells recover and rejuvenate, it also healed all my scars. Fast forward 7 months and I'm in remission, my skin and hair is healthy and glowing and it's safe to say the business is thriving.”18.I have no doubt that that Ms McIver’s account of the painful difficulties inflicted on her by her condition and consequent therapy were accurate. She showed her strength by the way that she dealt with those difficulties. But while her story of being driven to create a serum to cure her bad skin was presumably attractive from a marketing point of view, it was not true.19.There was no objective evidence that Ms Tang knew at this stage about Ms McIver’s claim to be the creator of Elixir.20.On 7 June 2018 Ms Tang and Ms McIver met in person at Cheshire Oaks, a retail centre in the Wirral. They continued their discussions by social media after the meeting. On 7 June 2018 Ms McIver asked Ms Tang to send her a few lines on the Elixir serum for marketing purposes. Ms Tang responded on the same day quoting a description of the serum from the YNNY website.21.On 8 June 2018 there was another Instagram post from Ms McIver for her customers and potential customers. She referred to a skin product, a serum that can only have been a reference to the Elixir serum. The post further said:“I made this with my very own hands [to] remove a scar last year & yes it worked!!!!This serum is still hand made but unfortunately the cost of making it has increased so there will be a small increase at the end of the month.”22.Other Instagram posts at about the same time from “katemciverskin” referred to the serum having been made by Ms McIver, or as now being produced by “us”.23.On 12 June 2018 Ms McIver asked Ms Tang for “a few lines how the serum is compared to mass produced”. Ms Tang provided a few sentences, apparently for Ms McIver’s use.24.From 20 June 2018 to August 2018 Ms McIver sold the serum (the Tang Formulation) under a label branded with the words SECRET WEAPON and KATE MCIVER in prominent upper case script (“the Second McIver Label”). As before the label contained a description and ingredients, an email address and post code. For the first time it included in a small typeface the letters YNNY.25.Although the label no longer used the trade name Elixir, Ms McIver told the public that it was still the serum that she had created. In an Instagram post dated 3 July 2018 Ms McIver used “before and after” photographs of her mother and said, referring to her mother:“My first Guinea Pig for my serum back when it was a case of making up the serum in my back room at home.”26.On 20 August 2018 KMS was incorporated and took over Ms McIver’s business, including sales of Elixir under the Second McIver Label. Ms Tang’s evidence was that towards the end of August 2018 she discovered that Ms McIver had been representing that Ms McIver created the Elixir serum. The defendants’ contention was that Ms Tang had known about this all along. Whatever may have been the date on which Ms Tang first became aware of Ms McIver’s representation, there is no record of a complaint about it at this time. Nothing turns on it; there was no claim by the defendants of an estoppel or other similar barrier in law to Ms Tang’s entitlement to enforce any right she now relies on.27.On 6 September 2018 Ms McIver sent an email to Abdur Rahman of Pelham Group (“Pelham”), a manufacturer of cosmetics in Petworth. Ms McIver referred to an earlier conversation between them and suggested that Pelham might make the Elixir serum, quoting the ingredients identified on the label – the ingredients of the Tang Formulation. Ms McIver spoke of a startup order of 1000 units and said:“I am currently feeling very threatened by investors and companies wanting to jump on the back of the product success and use my brand to resell for themselves. Obviously as I currently do not own the copy write or IP of my best selling product I am in a very vulnerable position and my business is massively at risk.”28.Mr Rahman asked for a sample and on 13 September 2013 told Ms McIver that Pelham’s chemists had made the product and that samples were ready to go. Mr Rahman later added that there were no new ingredients, the product was “the same as benchmark but we can add any ingredients you like”. Ms McIver replied:“The next steps now we need to add in a few ingredients so the serum is not identical to the original product by my current lady. I would also like to use this as a chance to increase the quality and effectiveness of the serum.Would it be possible to connect with a lab tech who may able to advise what ingredients would really enhance the serum?”29.On 25 September 2018 Mr Rahman emailed to say that new samples had been developed, giving lists of added ingredients for two new proposed formulations which he called samples 3 and 4. Ms McIver chose sample 3, to which, at her suggestion, frankincense oil was added. I will call this “the First Pelham Reformulation”. She and Mr Rahman discussed packaging.30.On 1 October 2018 there was a post on Facebook for Ms McIver’s customers and potential customers announcing the “Launch of New Secret Weapon Serum”. It included statement in quotation marks from Ms McIver, speaking of her treatment for cancer:“I was in my twenties, and it was just heartbreaking to see my body deteriorating so rapidly from the pharmaceuticals … I threw myself into researching and creating bespoke treatments that could be used on all skin types, and this was where the ‘magic’ serum was born.”The announcement added:“Following months of intensive research and experimentation, Kate’s new wonder serum began to take shape, offering to rejuvenate skin cells, heal scars and remove the harsh dark circles she struggled with.”31.On 7 November 2018 YNNY was incorporated. Some time in November 2018 Ms Tang informed Ms McIver of an increase in the price for the serum. On 30 November 2018, Kathryn Orr, a friend of Ms McIver’s and a co-worker at KMS, told Ms Tang that KMS would cease to use Ms Tang as a source of the serum, with immediate effect.32.From 1 December 2018 the First Pelham Reformulation, sourced by Pelham, was marketed by KMS in packaging that did not include the name “Elixir”. There were no further purchases of serum by KMS from YNNY or Ms Tang.33.KMS continued to represent this as the serum which Ms McIver had created to deal with her own skin problems caused by chemotherapy. KMS made prominent use of before and after photographs of the celebrity Danielle Lloyd. These were used in an Instagram post dated 19 October 2018, when KMS was marketing Ms Tang’s serum, with commentary that included:“Created by stage 4 cancer thriver Kate McIver.”34.The same pictures were used to promote KMS’s Secret Weapon serum on 12 and 23 November 2018 and 9 January 2019 and 29 July 2019, which implied that the serum marketed on those dates was either the same as, or not significantly different from the serum marketed in October 2018.35.On 1 December 2018 the Liverpool Echo published an article about Ms McIver. This was the headline:“Mum creates ‘secret weapon’ serum that’s transforming the lives of cancer patients”The article began:“A mum battling stage four cancer has created a ‘secret weapon’ serum that’s helping other people suffering with cancer feel good about themselves.”After saying more about Ms McIver’s illness and gruelling treatments, it continued:“But Kate decided to fight back and using her skincare knowledge from her job in skin aesthetics, created a serum using ingredients that specifically target the problem and promotes the rejuvenation of skin cells.Within weeks Kate’s skin was transformed and she started to share it with other cancer patients – who she knew from giving facials too [sic]”The article quoted Ms McIver:“I gave it to my friends and family and they also started to notice a huge difference in their skin – so I knew I was on to something.”36.On 2 December 2018 Ms McIver gave a radio interview to Gaby Roslin in which she was asked to explain her “Secret Weapon” serum. She spoke of the time she had chemotherapy:“… I think I had a lot of time on my hands, so I threw myself into my passion for skin, um and I did a lot of training and skin science courses and I started to sort of delve quite deep into the ingredients side of things, um, and product development because I knew one day that was my sort of end goal, you know, to produce a skincare range.”37.Ms McIver there referred to a range and was asked shortly afterwards by Ms Roslin to name it. She said it was called “the Secret Weapon Serum”.38.In early 2019 Ms McIver worked with Pelham to produce another version of the serum (“the Second Pelham Reformulation”).39.In an Instagram post of 31 January 2019 a customer complained about skin problems caused by the new formulation and asked how it differed from the original. In response, someone from KMS identified as “katemciverskin” said that “Turmeric and other healing ingredients” had been added but that KMS would have “the original formula back on the shelf in a few weeks time”, apparently to fix the “breaking out” caused by the First Pelham Reformulation.40.On 2 February 2019 KMS placed an order with Pelham for 2000 bottles of the Second Pelham Reformulation.41.From March 2019 the Second Pelham Reformulation was sold under the names “Kate McIver” and “Secret Weapon”. The name “Elixir” was not on the packaging, but the word “original” appeared prominently. Inconsistently, one Instagram post apparently dating from this time stated that the “Secret Weapon Original Formula is a brand new Formula”.42.On 1 March 2019 Kathryn Orr gave an interview on the podcast “Ladies of Liverpool”. She spoke of Ms McIver having created the Secret Weapon serum from her research.43.Ms McIver died on 24 March 2019.