Fur flies as Squishmallows sues rival cuddly toy maker
Warren Buffett-owned company takes aim at Build-A-Bear Workshop over best-selling range of toys | Dispute revolves around Build-A-Bear's new ‘Skoosherz’ line of plush toys and allegations of trade dress infringement and copyright infringement.
A Warren Buffett-owned toy company, the maker of the popular cuddly ‘Squishmallow’ toy, is suing rival Build-A-Bear over claims that its newly released Skoosherz range is ‘a knock-off’.
Jazwares—which was acquired by Buffett’s conglomerate in 2022—filed the complaint at the US District Court for the Central District of California, alleging trade dress infringement and copyright infringement.
It is joined in the suit by fellow toy makers Kelly Toys and Jaz Plus, which also produce the best-selling Squishmallows.
Build-A-Bear’s alleged infringement
The complaint, filed on February 12, 2024, outlines how Squishmallows had become a phenomenon, rapidly experiencing breakaway success and quickly becoming a coveted collectors’ item with an avid fanbase.
It goes on to allege that “rather than competing fairly in the marketplace”, Build-A-Bear “decided that it would be easier to simply copy, imitate, and profit off the popularity and goodwill of Squishmallows, all in the hopes of confusing consumers into buying its products instead of Squishmallows”.
According to the suit, 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 colouring; and velvety velour-like textured exterior.
It further contends that Build-A-Bear had likely noticed that consumers refer to Squishmallows as Squish, and had named its line “Skoosherz” to evoke an association with the word ‘Squish’.
“If a picture is worth a thousand words, the side-by-side comparison of Squishmallows against the Skoosherz copycats speaks volumes, argue the plaintiffs.
The toymakers seek injunctive relief, monetary damages, and a declaration of Build-A-Bear's infringement, which they insist have led to consumers mistaking Skoosherz for Squishmallows.
Media outlets and consumers have reportedly referred to Skoosherz as "Squishmallow-like" or "Squishmallow-adjacent, according to the suit.
This confusion, the complaint argues, has caused and will continue to cause harm, including lost customers, lost sales, and a dent in market share.
Build-A-Bear fights back
Meanwhile, Build-A-Bear countered by filing its own complaint against Jazwares at the US District Court for the Eastern District of Missouri, requesting a ruling that the trade dress rights claimed by the defendants for their Squishmallow products are invalid.
Build-A-Bear argues that its plush toys do not infringe on the defendants' claimed trade dress rights.
The Skoosherz line is described in the complaint as toys that are “distinctly round or spherical in shape, with bright colouring and features matching Build-A-Bear’s original, full animal designs (which it continues to sell).”
Build-A-Bear disputes the claimed trade dress in Squishmallows products, pointing out alleged inconsistencies in the features described by the defendants over time.
The Missouri-based company argues that the features claimed by the defendants are not consistently present across the entire Squishmallows product line, challenging the idea that they create a single, identifiable source for consumers.
According to the complaint, the Squishmallow’s features—such as specific shapes, colours, textures, and graphics—lack consistency, making it difficult for competitors to design alternative products.
Build-A-Bear also highlights the functional aspects of Squishmallows, such as their use as pillows, washability, and stress-relief properties.
The plaintiff argues that these functional features, including the egg/bell shape, embroidered facial features, and soft velour-like exterior, are essential to the purpose of the products and, therefore, cannot be protected as trade dress.
Dismissals of other complaints
Build-A-Bear argues that various elements of the claimed trade dress, allegedly introduced in 2017, existed in the market before that time.
Examples cited include Squishable's plush animal line starting in 2008, Ty's Beanie Ballz and Baby Ballz in 2011 and 2012, and KidRobot's Yummy World products from 2015.
The defendants' Squishmallows product line lacks exclusive rights due to dismissals of complaints against major competitors, such as Ty and Dan-Dee International, according to Build-A-Bear.
It suggests that these dismissals indicate a lack of distinctiveness in the claimed trade dress, as other companies use similar features without any affiliation or licensing from the defendants.
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