Copyright infringement accusations around John Lewis’ 2019 Christmas ad "Excitable Edgar" have boiled up again ahead of Christmas 2021.
Children’s author Fay Evans has issued proceedings in the Intellectual Property Enterprise Court, two years after she publicly noted a "striking similarity" between the ad’s accident-prone dragon and a character she developed in a book published in 2017, Fred the Fire-Sneezing Dragon.
John Lewis has reacted icily to the move, stating it is "surprised to have received this claim” because it has previously provided Evans with “time-stamped documents that show the concept … was previously presented to us in early 2016 – one year and seven months before her book was published".
However, Campaign understands that Evans is pursuing the case nevertheless because she believes the matter deserves judicial scrutiny.
Her specialist lawyers, Brandsmiths, have served a copyright infringement claim on joint defendants John Lewis Plc and its advertising agency, DDB UK Limited (trading as Adam & Eve/DDB), following pre-action legal correspondence.
A John Lewis spokesman said: "We strongly deny that we have copied or drawn any inspiration from the book, and will be robustly defending the claim."
Adam & Eve/DDB declined to comment.
Evans has made a non-monetary claim to the Intellectual Property Enterprise Court (IPEC), which gives the defendants 14 days to either serve a defence or acknowledge the claim.
For the litigant, this route avoids the substantial issue fees (which can reach up to £10,000) that are applied on monetary claims in excess of £200,000. It is thought these fees often act as a deterrent in intellectual property cases.
If the case goes to trial and the court finds an infringement, the defendants would need to provide limited financial information, at which point Evans could elect to pursue either damages or an account of the defendants’ profits.
Describing the case as a "David versus Goliath battle", Andy Lee, partner and head of intellectual property at Brandsmiths, said: "The IPEC was established precisely for cases such as this; to give access to justice at a proportionate cost to those who might not be able to otherwise bring a claim, particularly against much larger and well-resourced opponents."
The story of Fred the Fire-Sneezing Dragon centres on a solitary, little green dragon who is scorned by humans due to his uncontrollable fiery emissions until he wins their admiration at the end of the story by emitting a blast of fire that cooks food to perfection.
In the spot "Excitable Edgar", Edgar is an overexcited dragon who loves Christmas so much that he can't contain his fiery breath. After consequent mishaps, including melting a snowman, Edgar redeems himself by lighting a Christmas pudding.
Evans said: "I am totally confident in the validity of my claim and have received an overwhelming amount of public support. I want to take a stand for all creative artists – including writers, illustrators and musicians. Whether they are relatively unknown or at the top of their game, the same principle applies. The original creative work we strive with all our heart to develop and publish is fundamentally protected by the law of copyright."
Prior to October 2013, the IPEC was known as the Patents County Court (PCC). The name change was made to reflect the Court’s jurisdiction which covers more than just patent issues, it includes dealing with trademark, design, and copyright matters.