A dispute relating to popular soft toys is on-going in the US. Kelly Toys, the creator of the popular soft toys ‘Squishmallows’ is suing  Build-A-Bear in the US, alleging that Build-A-Bear’s new ‘Skoosherz’ soft toy range infringes Kelly Toys’ trade dress rights.

Trade dress is a lesser-known form of intellectual property, which acts to protect the characteristics of a product’s appearance which indicates the source of the product to the consumer. To successfully defend your products and brand against possible infringers, it vital that you have a well-rounded intellectual property portfolio including various forms of IP assets. As this case illustrates, not all features of a product are protectable via ‘traditional’ forms of intellectual property, such as patents and trade marks, and as such to give your brand holistic protection it is important to be aware of lesser known forms of intellectual property, like trade dress as relied upon in this case.

According to Kelly Toys, Squishmallows have a distinctive look and feel which includes “shaped fanciful renditions” of various animals with “simplified Asian style Kawaii faces” and a “velvety velour-like” fabric. In the lawsuit, Kelly Toys have alleged that Build-A-Bear have tried to ‘trick’ consumers with obvious copies, which have the same facial features, distinctive colouring and velvet texture as Squishmallows, and thus resulting in a loss of customers and sales from Squishmallows.

Kelly Toys stated that “rather than competing fairly in the marketplace”, Build-A-Bear “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” The lawyer representing Kelly Toys went onto state that “when it comes to intellectual property rights, imitation is not the sincerest form of flattery”. It is argued that the similarities between the trade dress of Squishmallows and the Build-A-Bear ‘Skoosherz’ line of products has caused harm to the Squishmallows brand, which includes a loss of customers, sales and market share.

In response to these allegations, Build-A-Bear have filed for a US court declaration stating that they do not infringe the trade dress rights in Squishmallows, stating that the Squishmallows toys lack a consistent look and feel, and that they are just the most recent type of pillow-like squishy toys that have been a trend for many years. Build-A-Bear have also alleged that the trade dress rights asserted by Kelly Toys are invalid and thus unenforceable, as soft toys which include the ‘distinctive’ features of Squishmallows were marketed by other companies before the Squishmallows range was created.

Furthermore, Build-A-Bear have submitted that the distinctive features referred to by Kelly Toys are not seen consistently throughout the entire Squishmallows soft toy range, thus suggesting that the appearance of Squishmallows do not act to indicate the source of the product to the consumer and therefore do not attract ‘trade dress’ protection.  It will be interesting to follow this case as it develops, as the outcome will likely provide us with an interpretation of the boundaries of trade dress protection not only in relation to the soft toy market, but also in relation to trade dress protection for other goods.

Through various lawsuits, Kelly Toys have attempted to rigorously defend their Squishmallows range through the assertion of the intellectual property rights that subsist within this soft toy range. As one example, they also recently brought proceedings against the Chinese e-commerce company Alibaba, alleging that they were selling counterfeit Squishmallows on their website. These lawsuits demonstrate how lesser known forms of IP, such as trade dress and design protection, can be used alongside your other forms of intellectual property to provide complementary protection and create a well-rounded intellectual property portfolio.

Contact Secerna today to discuss your IP strategy and ensure that you are positioned for success in this competitive market. Our team of commercially focused Chartered & European Patent Attorneys, operating across the UK and Europe, brings more than just legal expertise to the table. We boast a deep understanding of your industry and its challenges, ensuring your intellectual property portfolio aligns seamlessly with your business goals.