Toymakers’ twin lawsuits more than a playground fight
NEW YORK — It turns out there are lots of sharp elbows in the plush toy business. Build-A-Bear and the makers of Squishmallows are facing off in federal court.
Kelly Toys and its Berkshire Hathawaycontrolled parent company Jazwares have sued BuildA-Bear, saying its new “Skoosherz” toys copy the look and feel of their megapopular Squishmallows products.
The Skoosherz line, which Build-A-Bear began selling last month, has the “same distinctive trade dress” of Squishmallows, the complaint filed this week says, pointing to similarities in shape, face style, coloring and fabric.
“If a picture is worth a thousand words, comparing the Squishmallows original products to Builda-Bear’s copycats speaks volumes,” Moez Kaba, an attorney representing Kelly Toys and Jazwares, said in a statement. The companies will “vigorously defend” their intellectual property rights, he added.
Jazwares is seeking unspecified damages and for Build-A-Bear to stop selling Skoosherz products.
But Build-A-Bear hit back with its own lawsuit Monday, claiming Skoosherz does not infringe on the Squishmallows makers’ rights. It wants a declaratory judgment saying that the Squishmallow maker’s claimed trade dress rights are invalid and unenforceable.
The St. Louis-based retailer said Skoosherz products are based on its own original plush animals, “which have been sold for a number of years.” The lawsuit notes that products from other companies using features laid out in Jazwares’ complaint were around long before Squishmallows were created.
“If each aspect of the claimed trade dress were in fact protected trade dress, it
A shareholder carries Squishmallows purchases at last year’s Berkshire Hathaway annual meeting in Nebraska. would be virtually impossible for competitors to create alternative designs,” Build-A-Bear added. It said Squishmallows’ own line has also evolved and is not always consistent.
Squishmallows were created in 2016 and have skyrocketed in popularity. According to market research firm Circana, the brand’s 8-inch plush assortment was the top-selling toy in the U.S. last year. The toys also have become an online sensation.
In a statement Tuesday, Jazwares accused BuildA-Bear of going to great lengths to capitalize on Squishmallows’ success.
Jazwares’ lawsuit, filed in the U.S. District Court for the Central District in California, added that Skoosherz’s look, name and marketing has already confused consumers — causing potential losses in sales.
Build-A-Bear pushed back with its own complaint, which was filed in the federal Eastern District Court of Missouri. It said it does not seek to mislead consumers and that “there is in fact no actual confusion.”
Skoosherz’ January launch was in anticipation for Valentine’s Day, Build-ABear added.
Attorneys for Build-ABear and the company did not immediately respond to requests for comment Tuesday.
This isn’t the first legal battle over Squishmallows. In December, Kelly Toys also sued Chinese e-commerce giant Alibaba alleging that its online platforms were used to sell counterfeit Squishmallows.
Jazwares’ parent is Alleghany Corp., an insurance giant controlled by Warren Buffett’s Berkshire Hathaway.
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