Fast! What is the difference between Squishmallows and Skoosherz?
Time is up. Don’t worry if you can’t find an answer. The companies behind the colorful plush toys are engaged in a legal battle this week over what actually makes the toys different from one another.
Kelly Toys, which said it launched Squishmallows plush toys in 2016, filed a lawsuit 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 concepts and product lines,” reads the complaint filed by Kelly Toys in the U.S. District Court for the Central District of California, Build-A-Bear built a similar product when, the complaint adds, he “decided that it would be easier to simply copy, imitate, and profit from Squishmallows’ popularity and goodwill.”
Kelly Toys claims in its lawsuit that Build-A-Bear imitated Squishmallows plush toys “in hopes of enticing consumers to purchase its products instead of Squishmallows.”
In a complaint against Kelly Toys in the U.S. District Court for the Eastern District of Missouri, Build-A-Bear argued Monday that its line does not infringe any trademarks.
Squishmallows parent company says the toys are similar
Kelly Toys argued that the Build-A-Bear line has many similarities to Squishmallows toys, including “whimsical interpretations of animals/characters; simplified Asian-style Kawaii faces; embroidered facial features; distinctive, non-monochrome coloring; and a velvety, velvet-like textured exterior.
The company alleged a violation of the Lanham Act, which protects the 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 moved away from its original mission of helping people build their own toys. Instead, the lawsuit claims, Build-A-Bear copied Kelly Toys’ plush toys without a license or other permission to do so, and it even uses one of the same suppliers that makes Kelly’s products Toys.
The name of the Build-A-Bear line was also chosen, according to the company, to confuse consumers who were actually looking for Squishmallows, often called “Squish.”
Jazwares, the parent company of Kelly Toys controlled by Berkshire Hathaway, said in a statement from the law firm that represents it, Hueston Hennigan LLP, that “Build-A-Bear went to great lengths to copy the look, feel, sensation, and tactile design of Squishmallows to capitalize on the global success of Squishmallows in a blatant and intentional way.
How did Build-A-Bear respond?
Build-A-Bear, founded in St. Louis, argued in its complaint that features Kelly Toys claimed were part of its trade dress were not consistent across the Squishmallows product line.
The company said it started by helping buyers build their own toys, but explained that it has been selling plush toys that were previously stuffed for years. The new toys are not knockoffs of Squishmallows, the company argued, but rather knockoffs of some of their own original and popular plush toys. His Skoosherz Pink Axolotl is based on his original Pink Axolotl, for example.
The company also argued that many plush toys existed before Squishmallows entered the market, and that many had the features that Kelly Toys claimed were their trade dress, including a line of Squishable stuffed animals launched in 2008 and Kidrobot’s Yummy World products launched in 2015.
Attorneys for Build-A-Bear did not immediately respond to a request for comment Wednesday.
The Rise of the Squishmallows
Squishmallows have 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 among its fans, both of whom have posted about the toys on their social media accounts.
“Sales of Squishmallows have increased more than 300% in 2022 alone, with sales climbing to more than $200 million worldwide,” the complaint states.
