Squishmallows vs Build-a-Bear Squishmallows vs Build-a-Bear

Let the plush fight begin. On February 12, 2024, Kelly Toys sued Build-a-Bear Workshop in federal court, alleging that Build-a-Bear’s SKOOSHERZ line infringes Kelly Toys’ Squishmallow copyright and trade dress rights.  

Toys and stuffed animals can be protected as sculptural works under U.S. Copyright law. Such copyrights protect, among other things, the toy design (shape, form, and physical appearance) and artwork. Similarly, trade dress protects the overall commercial image (look and feel) of a product. The trade dress must indicate the source of the goods. Furthermore, a feature of the trade dress cannot be functional, or essential to the purpose or use of the good or affect the quality or cost of the good. Lastly, trade dress must have acquired distinctiveness or secondary meaning.  

Kelly Toys is the maker of Squishmallow plush toys. Squishmallows took the nation by storm starting in 2016 with their marshmallow-like feel, velvet-like plush coating, and their fun and cute designs.  

Build-a-Bear was founded in 1997. Build-a-Bear is most famous for allowing customers to customize their stuffed animals by choosing the animal, stuffing them, and deciding on their outfits. Build-a-Bear’s new SKOOSHERZ line launched in January 2024. The new SKOOSHERZ line features a line of round plush animals. Build-a-Bear introduces their new line as “SKOOSHERZ™ are our most squishable, lovable and huggable friends!” See Build-a-Bear, “SKOOSHERZ™ Pink Axolotl Stuffed Animal,” https://www.buildabear.com/skoosherz-pink-axolotl-stuffed-animal-/032255.html?cgid=stuffed-animals-build-a-bear-collections-build-a-bear-skoosherz.  

In its lawsuit, Kelly Toys alleges that Build-a-Bear’s SKOOSHERZ line infringes on their copyright and trade dress for their Squishmallow toys. In response, Build-a-Bear filed their own lawsuit against Kelly Toys in Missouri seeking a declaratory judgment that Kelly Toys’ claimed trade dress rights are invalid and unenforceable. To succeed in its trade dress infringement claims, Kelly Toys will have to prove that the look and feel of the Squishmallows are not functional and have acquired distinctiveness.   

At Renner Otto, the oldest intellectual property firm in Cleveland, we specialize in assisting our clients as they develop efficient Intellectual Property strategies that are tailored to their business’s needs. Our attorneys are knowledgeable on a wide range of domestic and international IP issues, and we partner with Firms around the world to better serve our clients.   

Someone from the Renner Otto team would be happy to discuss this topic or any related Intellectual Property matters.