IP Law Daily, TRADEMARK NEWS: Squishmallows toymaker sues Build-a-Bear for trade dress and copyright infringement, (Feb 15, 2024)

By Steven Melendez

Kelly Toys says Build-a-Bear's new "Skoosherz" plush toy line copies its Squishmallows toys.

Kelly Toys, the maker of Squishmallows plush toys, sued Build-a-Bear Workshop, alleging a line of toys introduced in January 2024 infringes its Squishmallows copyrights and trade dress. The complaint in Kelly Toys Holdings, LLC v. Build-A-Bear Workshop, Inc., was filed February 12, 2024, in the federal district court in Los Angeles.

"Skoosherz toys have the same distinctive trade dress as the popular Squishmallows, including: shaped fanciful renditions of animals/characters; simplified Asian style Kawaii faces; embroidered facial features; distinctive and non-monochrome coloring; and velvety velour-like textured exterior,” according to a complaint in the case that includes side-by-side images of toys from both brands. "And, likely noticing that consumers refer to Squishmallows as Squish, Build-A-Bear named its line “Skoosherz” to evoke an association with the word 'Squish.'"

Kelly Toys alleges Build-a-Bear "has been trying to trick consumers" into buying its new toys instead of Squishmallows, a line created in 2016 and collected by celebrities like Lady Gaga and Kim Kardashian. The toymaker says its "creative development efforts produced an entirely new class of plush toys that has carved a previously non-existent niche in the marketplace," with most of their designs registered with the U.S. Copyright Office.

Squishmallows trade dress has also "acquired distinctiveness in the marketplace," according to the complaint. Kelly Toys claims it markets its toys through thousands of retail stores and online and actively promotes the toys on social media sites like Instagram, TikTok, Twitter, and Facebook. The toys have also been featured in hundreds of publications, according to the complaint, including the Washington Post, Forbes, Seventeen, and even Costco Connection, the warehouse club's publication for members.

“Due to Squishmallows’ massive success and popularity, consumers associate the high-quality Squishmallows toys with the Squishmallows Trade Dress,” according to the complaint.

Skoosherz differ from typical Build-a-Bear toys in not being customizable, according to the complaint, which claims they "have the same distinctive trade dress as the popular Squishmallows."

The complaint also cites social media comments to illustrate consumer confusion between the two brands. "How did Squishmallow not file a lawsuit for this," asked one online commenter cited in the complaint.

The complaint from Kelly Toys includes claims for trade dress infringement under the Lanham Act and California common law, federal copyright law, and unfair competition under California common law and California statute.

Kelly Toys asked the court to bar further infringement or unfair competition, to award damages, rule that Build-a-Bear willfully violated Kelly Toys' rights, and order Build-a-Bear to recall and destroy any merchandise violating its rights. Kelly Toys also asked that Build-a-Bear be ordered to pay the cost of "corrective advertising," attorney fees and costs, punitive and exemplary damages, actual damages, Kelly Toys' lost profits, and Build-a-Bear's own profits.

The Case is No. 2:24-cv-01169-JLS-MAR.

Attorneys: Moez M. Kaba (Hueston Hennigan LLP) for Kelly Toys Holdings, LLC, Jazwares, LLC, Kelly Amusement Holdings, LLC and Jazplus, LLC.

Companies: Kelly Toys Holdings, LLC; Jazwares, LLC; Kelly Amusement Holdings, LLC; Jazplus, LLC; Build-A-Bear Workshop, Inc.

News: Copyright Trademark CaliforniaNews