Ask Dr. Copyright

Dear Doc:

How can a person tell if one stuffed toy infringes the intellectual property rights in another stuffed toy?  Asking for a friend.

J. Sinestvet

copyright infringement of stuffed animals

Dear J:

When the Doc was about to graduate from law school, he was interviewed for a job at a prominent Philadelphia patent law firm. The Doc has a degree in chemistry, had done graduate studies in microprocessor computer systems, and had worked in a patent law practice for two years. During the interview, the senior partner at the law firm abruptly marched the Doc out of his office and down the hall, and disappeared into a walk-in closet. The senior attorney emerged brandishing two stuffed mouse toys, which he held up to the Doc’s face and demanded, “INFRINGEMENT???”

The Doc, being a chemist, computer guy, and general technology nerd, replied, “How should I know?” Needless to say, the Doc did not get the job!

Even today, the Doc still has trouble understanding the plush (that’s what the toy folks call them) toy wars. Case in point: Squishmallows owner Kelly Toys is taking Build-A-Bear to court. Both Kelly Toys and Build-A-Bear filed lawsuits on the same day after Build-A-Bear started selling its Skoosherz line of plushies. (Kelly Toys Holdings LLC, et al. v. Build-A-Bear Workshop Inc., Case No. 2:24-cv-01169, in the U.S. District Court for the Central District of California and Build-A-Bear Workshop Inc. v. Kelly Toys Holdings LLC, et al., Case No. 4:24-cv-00211, in the U.S. District Court for the Eastern District of Missouri.) For Kelly Toys, the problem is that Skoosherz look too much like its Squishmallows. 

Kelly Toys filed its trademark infringement case in California, while Build-A-Bear filed a declaratory judgment of invalidity of trade dress case in Missouri. Kelly Toys outlined the Squishmallows history: They were released in 2016 with distinctive designs — they’re oval, usually animals, and have cute faces. Most importantly, they’re very soft and squishable. (Kelly Toys, by the way, is owned by Jazwares, which acquired the Squishmallow maker in 2020. Jazwares itself is owned by Berkshire Hathaway.) They were one of the top-selling toys of 2022. The company alleged that its Squishmallows line, of which there are more than 3,000, made $200 million in 2022, a 300% increase above the prior year. So, when Build-A-Bear first revealed its Skoosherz line, the first thing people did was compare them to Squishmallows.

You can see why from the photo, no? Build-A-Bear said in its lawsuit that they aren’t copycats — they’re round, pillow-like versions of its own original plush toys.  Noting that Build-A-Bear hired the same Chinese factory that manufactures Squishmallows, Kelly Toys asserts:

Rather than competing fairly in the marketplace by creating its own unique concepts and product lines, Defendant Build-A-Bear, a company worth over $300 million, 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.

On the other hand, Build-A-Bear lawyers wrote. “From a toy designer’s perspective, each of these claimed trade dress features is necessary to either depict the various characters or animals, or is necessary to create this category of pillow-type plush that is currently trending.” 

Kelly Toys has a history of litigating over its Squishmallows line, including suits against Tee Turtle’s Flip-A-Mallows toys, Beanie Babies maker Ty for its Puffies and Squish-a-Boos, and Dan-Dee International for its Squishy line. Several of these were dismissed, Build-A-Bear’s lawyers said. Others were settled, according to court records. Several lawsuits against individual stores remain pending.

INFRINGEMENT??? The Doc still, more than 40 years later, has no idea what infringes what. But the attorneys at LW&H can help you to sort it all out. Give them a call.

Until next month,

The “Doc”

— Lawrence A. Huisck, Esq.