Quick! What is the difference between Squishmallows and Skoosherz?
Time’s up. Don’t fret if you couldn’t come up with an answer. The companies behind the colorful plush toys are in a court battle this week over what actually makes the toys distinct from each other.
Kelly Toys, which said it released the Squishmallows plush toys in 2016, filed a lawsuit on Monday against Build-A-Bear over its Skoosherz line, which launched last month in anticipation of Valentine’s Day. Build-A-Bear filed its own lawsuit against Kelly Toys.
Instead of “creating its own unique concepts and product lines,” read the complaint filed by Kelly Toys in U.S. District Court for the Central District of California, Build-A-Bear built a similar product when, the complaint added, it “decided that it would be easier to simply copy, imitate, and profit off the popularity and good will of Squishmallows.”
Kelly Toys argues in its lawsuit that Build-A-Bear imitated the Squishmallows plush toys “in the hopes of confusing consumers into buying its products instead of Squishmallows.”
In a complaint against Kelly Toys in U.S. District Court for the Eastern District of Missouri, Build-A-Bear argued on Monday that its line did not infringe upon any trademark.
The parent company of Squishmallows says the toys are similar
Kelly Toys argued that the Build-A-Bear line bears many similarities to Squishmallows toys, including “shaped fanciful renditions of animals/characters; simplified Asian style Kawaii faces; embroidered facial features; distinctive and nonmonochrome coloring; and velvety velour-like textured exterior.”
The company has claimed infringement under the Lanham Act, which protects trade dress, the legal concept that refers to the look and feel of a product making it unique from other products.
The company also points out that Build-A-Bear has leaned away from its original mission to help people build their own toys. Instead, the lawsuit claims, Build-A-Bear has copied Kelly Toys plush toys without the licensing or other authorization to do so, and it even uses one of the same suppliers that manufactures Kelly Toys’ product.
The name of Build-A-Bear’s line was also chosen, the company claimed, to confuse consumers who are actually looking for Squishmallows, which are often called “Squish.”
Jazwares, the parent company of Kelly Toys that is controlled by Berkshire Hathaway, said in a statement from the law firm representing it, Hueston Hennigan LLP, that “Build-A-Bear has gone to great lengths to copy the distinct look, feel, and tactile design of Squishmallows to capitalize on Squishmallows’ global success blatantly and intentionally.”
How has Build-A-Bear responded?
Build-A-Bear, which was founded in St. Louis, argued in its complaint that the characteristics that Kelly Toys claimed to be part of its trade dress were not consistent throughout the entire Squishmallows product line.
The company said that it did start out by helping buyers build their own toys, but explained that it has sold plush toys that had been previously stuffed for years. The new toys aren’t imitations of Squishmallows, the company argued, but instead imitations of some of its own original and popular plush toys. Its Skoosherz Pink Axolotl is based on its original Pink Axolotl, for example.
The company also argued that many plush toys existed before Squishmallows entered the market, and many had the features that Kelly Toys said were its trade dress, including a Squishable plush animal line released in 2008 and Yummy World products from Kidrobot released in 2015.
Lawyers for Build-A-Bear did not immediately respond to a request for comment on Wednesday.
The rise of Squishmallows
Squishmallows exploded in popularity during the coronavirus pandemic. Videos about the toys have been viewed more than 11 billion times on TikTok and fans have posted about the toys more than 11 million times on Instagram, according to Kelly Toys’ complaint.
The company counts Lady Gaga and Kim Kardashian, who have both posted about the toys on their social media accounts, among its fan base.
“Sales of Squishmallows have increased over 300 percent in 2022 alone, with sales soaring to over $200 million worldwide,” the complaint reads.
