The fur is ready to fly as the creators of Build-A-Bear and the creators of Squishmallows face off in court.
Kelly Toys and its parent company Jazwares, controlled by Berkshire Hathaway, have sued Build-A-Bear, saying its new “Skoosherz” toys copy the appearance of its mega-popular Squishmallows products.
The Skoosherz line, which Build-A-Bear began selling last month, has the “same distinctive trade dress” as Squishmallows, the complaint filed Monday says, noting similarities in shape, face style, color and fabric.
“If a picture is worth a thousand words, comparing the original Squishmallows products to the Build-a-Bear imitators speaks volumes,” Moez Kaba, an attorney representing Kelly Toys and Jazwares, said in a statement. 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.
A shareholder leaves the Squishmallows booth with a large shopping bag in the exhibition hall
(Copyright 2023 The Associated Press. All rights reserved)
But Build-A-Bear responded with its own lawsuit on Monday, claiming that Skoosherz does not infringe on the rights of Squishmallows makers. It wants a declaratory judgment saying that the trade dress rights claimed by the Squishmallow maker are invalid and unenforceable.
The St. Louis-based retailer says Skoosherz products are based on its own original stuffed animals, “which have been sold for several years.” The lawsuit notes that other companies' products that use features exposed in Jazwares' complaint existed long before Squishmallows was created.
“If every aspect of the claimed trade dress were in fact protected trade dress, it would be virtually impossible for competitors to create alternative designs,” Build-A-Bear added. He said the Squishmallows line itself has also evolved and is not always consistent. .
The Squishmallows booth sells toys inspired by Warren Buffett, pictured.
(Copyright 2023 The Associated Press. All rights reserved)
Squishmallows, which were created in 2016, have skyrocketed in popularity. According to market research firm Circana, the brand's 8-inch plush assortment was the best-selling toy in the United States last year.
In addition to increasing sales, Squishmallows have also become an online sensation. Celebrities like Kim Kardashian and Lady Gaga, for example, have shared images of their collections on social media.
In a statement Tuesday, Jazwares accused Build-A-Bear of going to “great lengths” to capitalize on the success of Squishmallows.
Jazwares' lawsuit, filed in California District Court, adds that Skoosherz's appearance, name and marketing have already confused consumers, leading to potential lost sales.
Build-A-Bear responded with its own complaint, which was filed federally from Missouri, saying it is not seeking to mislead consumers and that “in fact, there is no real confusion.”
Squishmallow Kellytoy Set of 4 Spring Easter Eggs
(Marshmallow)
The Skoosherz launch in January came in anticipation of Valentine's Day, Build-A-Bear added.
Attorneys for Build-A-Bear and the company did not immediately respond to requests for further comment Tuesday.
This is not 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. Buffett did not immediately respond to a message about the lawsuits Tuesday, but the billionaire's Omaha, Nebraska-based conglomerate typically leaves handling of such litigation to its subsidiaries.
