ST. LOUIS — Build-A-Bear and Squishmallow are suing each other over "knockoff" allegations.
Build-A-Bear has become a global brand with a mission to "add a little more heart to life," appealing to various consumer groups who enjoy creating their own "furry friends" for life's special moments, according to a complaint filed Feb. 12 in U.S. District Court for the Eastern District of Missouri.
Build-A-Bear claims it began with consumers making their own plush toys, but has expanded to selling pre-stuffed toys in stores and online.
In January 2024, they introduced SKOOSHERZ, collectible plush friends designed for optimal hugging benefits, featuring trademarked names and Build-A-Bear's logos, according to the suit.
Build-A-Bear claims the SKOOSHERZ plush toys are exclusively available through Build-A-Bear's stores and website, not in third-party retailers like Walgreens or Walmart.
The defendants, claiming trade dress rights in their Squishmallows product line, have changed descriptions of their features over the years. Build-A-Bear asserts that the defendants' claims lack consistency and fail to establish a unique source identifier.
Build-A-Bear argues that the defendants' various asserted trade dress features, such as animal faces and colors, are functional and commonly used in the industry.
Build-A-Bear highlights that many Squishmallows features, like eyes, snouts and colors, are found in numerous other products predating the defendants' Squishmallows.
Major competitors like Ty and Dan-Dee have also used similar features, indicating a lack of distinctiveness, according to the suit. The defendants' dismissals against competitors suggest they cannot exclusively claim these trade dress elements.
In contrast, Build-A-Bear's SKOOSHERZ plush toys are based on their existing designs, not copied from the defendants, according to the suit.
The plaintiff argues that SKOOSHERZ toys are distinctly spherical, contrasting with the defendants' egg/bell-shaped Squishmallows, and that each SKOOSHERZ toy retains Build-A-Bear's trademark features, clearly identifying them as Build-A-Bear products.
Build-A-Bear emphasizes that their SKOOSHERZ plush toys are clearly labeled with their trademark, preventing consumer confusion. They are exclusively available in Build-A-Bear stores and on their website, further distinguishing them from Squishmallows.
Build-A-Bear claims its marketing consistently highlights its brand as the sole source of SKOOSHERZ, minimizing any likelihood of confusion.
The dispute centers on whether the defendants' Squishmallows trade dress claims are valid and enforceable.
Build-A-Bear argues that these claims lack consistency, are functional and are not exclusive to the defendants. They claim that their SKOOSHERZ plush toys are distinct in design and clearly labeled, ensuring consumers recognize them as Build-A-Bear products.
Build-A-Bear claims its introduction of SKOOSHERZ represents its ongoing commitment to innovation and quality in the plush toy market.
The dispute with the defendants over Squishmallows trade dress underscores the complexities of establishing distinctiveness in a competitive industry, according to the suit.
Through clear branding and unique design, Build-A-Bear aims to continue offering memorable experiences for its customers worldwide, according to the suit.
Build-A-Bear is seeking a judgment declaring the trade dress rights by the defendants invalid and unenforceable. Build-A-Bear is represented by Michael J. Hickey, Philip J. Mackey and Allison E. Knopp of Lewis Rice in St. Louis.
Build-A-Bear also filed a motion to stop Kelly Toys Holdings, Kelly Amusement Holdings Jazwares and Jazplus from continuing with a lawsuit it filed against Build-A-Bear after Build-A-Bear had filed its lawsuit.
Build-A-Bear asserts that it originally filed its complaint on Feb. 12 for declaratory judgment and served it to the defendants on the same day. The defendants then filed a lawsuit against Build-A-Bear on Feb. 12, 2024, for trade dress infringement, copyright infringement, unfair competition and other claims, and served Build-A-Bear the next day.
Build-A-Bear argues that based on legal precedent, its lawsuit should be given priority because it was the first to file, and the defendants' actions demonstrate bad faith and forum shopping.
Attorneys for the parties declined to comment.
U.S. District Court for the Eastern District of Missouri case number: 4:24-cv-00211