Summary
Build-A-Bear rubbed Kelly Toys, the company that owns Squishmallow-maker Jazwares, the wrong way last yearby releasing its own line of Squishmallow-like toys, Skoosherz. The two companies have been going back and forth in court ever since with Build-A-Bear recently requesting Kelly Toys send it one of every singleSquishmallowit has designed to date.
Polygonhas reported on the latest, somewhat bizarre development in the evolving case between Build-A-Bear and Kelly Toys. Amid a sea of claims and counterclaims as each side has attempted to tie up the other in litigation, Build-A-Bear noted in the latest counterclaim that it needs to get a proper look and feel of Kelly Toys' Squishmallows to determine the similarities - or in Build-A-Bear’s case, prove that there are none.
Since this a trade dress lawsuit, the entire focus of the claim by Kelly Toys is that Build-A-Bear’s Skoosherz are too similar to its Squishmallows. To try and disprove that claim, Build-A-Bear requested Kelly Toys send it one of every single Squishmallow released to date. You’ll have likely seen them everywhere (they’re pretty popular), and in the nine years since the first Squishmallow was introduced to the world, more than 3,000 designs have been released.
Build-A-Bear Wanted To Be Sent 3,000 Squishmallows
Don’t We All, Build-A-Bear, Don’t We All
Unfortunately for Build-A-Bear, they will not be getting sent 3,000 Squishmallows free of charge. While the judge overseeing the counterclaim agrees that “some degree of physical inspection would be appropriate,” they added, “An inspection of all 3,000 products would be obviously disproportionate to the needs of the case.”
Instead, the judge suggested Kelly Toys send some of its Squishmallows to Build-A-Bear for inspection, and that it examine the thousands of other stuffed toys it’s accused of copying to create its Skoosherz in photo form. Build-A-Bear has already attempted to fight back against that denial, noting in its response that the implication here is that Squishmallows “have a single trade dress comprised of five different elements” across thousands of different designs.
Even though Build-A-Bear has been engaged in a legal battle with Kelly Toys over the similarities between Skoosherz and Squishmallows for over a year, it has still added to its Squishmallow-like line. There were only five Skoosherz when the Build-A-Bear line was first revealed, butthat range has since grown to include 16 plushes. With various claims and counterclaims being filed, and requests for 3,000+ Squishmallows to be sent for inspection, it seems unlikely this case will be resolved anytime soon.
