Kelly Toys, the maker of the ever-popular Squishmallows, and stuff-it-yourself plush company Build-A-Bear have been at it in court for well over a year now. Both Kelly Toys and Build-A-Bear filed their own respective lawsuits in February 2024, in different courts. Kelly Toys’ was filed in California, where its lawyers argue Build-A-Bear’s Skoosherz line looks too much like Squishmallows; Build-A-Bear filed its own lawsuit in Missouri, where its lawyers want a judge to determine that you can’t really trademark cute, rounded stuffed animals.
The companies have been going back and forth with amended complaints and motions to dismiss for months. Build-A-Bear’s Missouri lawsuit was dismissed in August 2024. That same month, Build-A-Bear filed a counterclaim against Kelly Toys, effectively looking for the same things from the California court — to declare that Build-A-Bear doesn’t have any trademark issues with Kelly Toys and Squishmallows. Squishmallows, for their part, were released in 2016 and are known for being super squishy and for their distinctive oval shape. Skoosherz were debuted in 2024 and are similarly cylindrical, squishy, and based off Build-A-Bear’s other stuffed animals.
The counterclaim has also effectively outlined the history of cute, squishy, and somewhat rounded stuffed animals; Build-A-Bear says this style of stuffed animal has existed for decades, including Squishables, Ty’s Beanie Ballz, and Kid Robot’s Yummy World stuffed animals. Kelly Toys and Ty have actually been at it for decades; Kelly Toys’ then-vice president Dan Kelly took out an ad in the Los Angeles Times in 1997 to accuse Ty “of threatening to destroy his Little Mini Bean Pal Babies.” Kelly Toys sued Ty for its Squish-a-Boos and Puffies lines, Tee Turtle for its Flip-A-Mallows, and Dan-Dee International for its Squishy line. Kelly Toys also has a bunch of other lawsuits ongoing against Chinese storefronts on Alibaba. Several of these lawsuits have been dismissed.
Since the counterclaim, both sides have begun the process of discovery — a way to bring forth evidence in the case. Because this is a trade dress lawsuit, there’s an emphasis on the look and feel of the products; to fully gather enough information to make its case, Build-A-Bear’s lawyers have requested Kelly Toys provide them with samples of the full line of Squishmallows, or roughly 3,000 plush toys. The lawyers argued they must be able to physically inspect all the stuffed animals, because Kelly Toys “have put the physical feel of the products at issue by including it as part of their asserted trade dress rights,” according to a court filing. The burden of doing that, Build-A-Bear’s lawyers said, is their own doing “by putting their 3000 products at issue in multiple lawsuits against different competitors.”
A judge denied that request. “Accordingly, the Court finds that some degree of physical inspection would be appropriate here, though, as discussed below, an inspection of all 3000 products would be obviously disproportionate to the needs of the case,” according to court minutes filed on April 25. The judge suggested Build-A-Bear inspect photos of all Squishmallows, and physically inspect some of them. Build-A-Bear continued to argue against that decision in a filing uploaded on April 8, in an attempt to sway the judge to “decline to award” attorney’s fees and costs related to the request.
“Indeed, it is difficult to imagine how Plaintiffs could establish the most basic element of their claims at summary judgment and trial – namely, that thousands of uniquely different products have a single trade dress comprised of five different elements across an entire line of thousands and thousands of unique products — without producing those physical products in discovery, no less,” Build-A-Bear’s lawyer wrote.
A trial date hasn’t been set yet, but Build-A-Bear and Kelly Toys currently have until May 23 to complete fact discovery before a pre-trial conference in December.
Source：https://www.polygon.com/toys/556065/squishmallows-build-a-bear-copyright-trademark-lawsuit
