With the heated infringement news currently captivating audiences on TikTok, here’s what can we learn from the ongoing battle.
In the typically cuddly world of plush toys there’s a prickly legal battle brewing, that may end up as fierce as it is adorable.
Kelly Toys, the parent company of “Squishmallows”, is taking Build-A-Bear to court over their new “Skoosherz” line, citing copyright infringement due to too many similarities in the products.
But is it all just fluff, or is there a serious copyright concern here?
Squishmallows vs Skoosherz: the story so far
Squishmallows burst onto the scene in 2016, sporting their signature oval shape, adorable animal designs, and irresistibly soft texture. Owned by Jazwares, which itself is under Warren Buffet’s holding company Berkshire Hathaway, these cuddly critters quickly became a sensation, raking in the dough for all involved.
In 2022 alone, the Squishmallows line made a staggering $200 million, – a 300% increase from the previous year. The Squishmallow craze even graced the pages of the New York Times, with A-list celebrities including Lady Gaga and Kim Kardashian jumping on the bandwagon.
And that’s when Skoosherz came along, with the Build-a-Bear behemoth eager to take its own chunk of the pie.
However, given the physical similarities between the two product lines, Kelly Toys is alleging that Build-A-Bear’s Skoosherz is a blatant copycat, allegedly riding Squishmallows’ coattails to turn a profit. On top of this, Kelly Toys claims that Build-A-Bear even sourced its Skoosherz from the same Chinese factory responsible for Squishmallows.
Build-A-Bear argues that its latest addition to the plushie family isn’t a copycat product, but rather, a unique spin on its own original creations. They argue that the Skoosherz designs are original; that features such as their egg-like shape and Kawaii faces are necessary for this type of plush toy, and that the alleged infringements are so broad that they stifle creativity in the industry.
Both sides have unsheathed their legal swords, with Kelly Toys filing a lawsuit in California, and Build-A-Bear countering with one in Missouri. And both are digging in their heels.
Kelly Toys is prepared to vehemently defend its intellectual property rights – and this isn’t its first rodeo in the courtroom, either. The company has previously taken on giants like Alibaba and Ty over similar disputes.
They gained popularity on social media thanks to enthusiastic fans, especially teenage girls, who shared their collections online. This led to over 9 billion video views on TikTok alone, along with 368,000 followers and an average of 60,000 views per video. Additionally, a report by Premium Joy identified Squishmallows as the leading toy brand in 41% of U.S. states, covering 21 out of 51 states.
Avoiding copyright pitfalls: tips for UK small business owners
Avoid committing copyright infringement:
Do your research: before launching a new product, design, or company name, take a deep dive into any worst-case scenarios that may arise. Spend some time researching any companies that may potentially take issue with your new concept, and think about how you can avoid challenges. This is paramount in helping you avoid unintentional infringement and costly legal battles down the line.
Focus on originality: it may seem like easy work to piggyback on someone else’s success, but too many similarities will only create a lifetime of media and potential customers scrutinising and comparing your products. Without a distinctive USP, value proposition or alternative brand identity to tie your new products to, you risk simply looking like a cheap knock-off, and losing any customer trust you might have gained ethically.
Prevent your company from being infringed:
Know the basics of copyright law: Infringement laws can be tricky to navigate. For example, registering a work is not mandatory (as copyright exists on original works automatically once it is published in the UK), but may be necessary to enforce your rights in court if no other methods of proof are available.
Ideas in your head are not protected on their own; only the ways they are expressed in material form are protected.
Somewhat annoying, it is actually perfectly legal for someone to register your company name as long as it’s in a different industry: for example, Soprano Violins and Soprano Delivery.
Choose the best form of protection for your assets: Copyright is not the only form of protection, and is not the best option in all cases – it really depends on what type of content you’ve created. Copyrights are for written works, for example – trademarks are typically for things like unique company names, and patents are mostly for inventions. Choosing the right one could be the difference between winning and losing if someone tries to infringe on your style, even if you were first, in a court of law.
A copyrighted or patented product, design or business name can also be a tangible asset that adds more value to your business in the eyes of angel investors and venture capitalists.
Monitor your space: You don’t have to make it into your whole life, but it’s a good idea to monitor your competitors and marketplace trends from time to time. With trademarks in particular, you can set up alerts for whenever anyone wants to register a similar name to yours in a similar space, and you will be allowed first dibs on whether you want to challenge their request or not. Keep an eye out, and you should be able to address any potential threats proactively (with a cease and desist for example) to protect your business interests before anything gets too far down the line.
Conclusion
While imitation may be the sincerest form of flattery, it’s not always welcome in the world of business. By taking proactive steps to protect your intellectual property and avoid infringements of your own, you should be able to navigate the commerce space with confidence.
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