Squishmallows owner Kelly Toys is taking Build-A-Bear to court in what may be the cutest legal battle ever. Both Kelly Toys and Build-A-Bear filed respective lawsuits on Monday after Build-A-Bear started selling its Skoosherz line of plushies this year. For Kelly Toys, the problem is that Skoosherz look too much like its Squishmallows. To that, Build-A-Bear responded: You can’t trademark cute animals!
Kelly Toys filed its lawsuit in California, while Build-A-Bear filed one in Missouri. In the first lawsuit, Kelly Toys lawyers outline the Squishmallows timeline: 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 Warren Buffet’s Berkshire Hathaway.) Quickly, they became popular collectibles, and were later named one of the top-selling toys of 2022.
Squishmallow culture has been covered in the New York Times, and major celebrities like Lady Gaga and Kim Kardashian collect ‘em, according to the lawsuit. [Disclosure: I have an embarrassingly large Pokémon Squishmallow collection. See above — but two are missing, big Gengar and medium Togepi.] The company also revealed that its Squishmallows line, of which there are more than 3,000, made $200 million in 2022, a 300% increase year over year. So, when Build-A-Bear first revealed its Skoosherz line — a departure from its in-store, customizable stuffed animals — the first thing people did was compare them to Squishmallows.
Image: Kelly Toys via lawsuit
You can see why, 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. “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 dollars, 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,” Kelly Toys wrote in its lawsuit.
Kelly Toys has several copyrights around the toys (but not the words squish, notably), but Build-A-Bear said they aren’t valid — the claims are so broad that no competitor would be able to make pillow-like plushies should it be enforced.
“If features such as an egg/bell shape, Asian style Kawaii faces with rounded/oval shaped graphics, embroidered facial features, distinctive contrasting non-monochrome coloring, or short-pile fabric exterior were protected trade dress, it would be virtually impossible for competitors to create alternative toy designs for this item’s purpose,” 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 isn’t buying that and argued that Build-A-Bear had to even correct users on social media who were calling the toys Squishmallows. “Squishmallow!?!?” one user wrote, to which Build-A-Bear’s social media admin responded: “*Skoosherz.” Beyond that, Kelly Toys also claimed that Build-A-Bear also hired the same Chinese factory that manufactures Squishmallows to make its Skoosherz.
Build-A-Bear has not responded to Polygon’s request for comment. A Jazwares representative provided the following statement to Polygon:
While Jazwares does not typically comment on litigation, in this case, we feel we must. Jazwares vehemently protects its intellectual property rights for Squishmallows, the #1 best-selling toy in the entire industry, according to Circana (December 2023 point-of-sale full-year report). 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. Like many popular global brands, combating counterfeits and deliberate copycats is a pressing issue, and we trust that the U.S. legal system will also see the obvious infringement.
Kelly Toys has sued before over its Squishmallows line, the last of which was against Chinese e-commerce company Alibaba. That lawsuit was over Alibaba’s role in the sales of counterfeit Squishmallows on the platform. It’s also sued 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, per court records. Several Alibaba lawsuits against individual stores remain ongoing.
