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Judge cites comments on Squishmallows, Shoosherz

similarities

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Kelly Toys lawyer vows to protect intellectual property

rights

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Build-A-Bear suing separately to avoid liability

By Jonathan Stempel

NEW YORK, July 16 (Reuters) - A U.S. judge rejected

Build-A-Bear Workshop's ( BBW ) effort to dismiss a lawsuit

claiming that its Skoosherz plush toys were unauthorized

knockoffs of Squishmallows, the popular plush toys made by a

unit of Warren Buffett's Berkshire Hathaway ( BRK/A ).

In a decision on Monday, U.S. District Judge Josephine

Staton in Los Angeles said it would be "particularly inapt" to

dismiss Kelly Toys' lawsuit, which seeks unspecified damages, in

light of the apparent similarities between the products.

The judge cited online accounts associated with Build-A-Bear

where users posted comments such as "so now ur making

squishmallows?" and "Cmon plagiarism" when discussing Skoosherz.

"This case is not an instance where the works are so

dissimilar by plain sight that any person observing them could

confidently conclude that they do not share substantial

similarities," Staton wrote.

Build-A-Bear and lawyers for the St. Louis-based company did

not immediately respond to requests for comment on Tuesday.

Moez Kaba, a lawyer for Los Angeles-based Kelly Toys and its

parent Jazwares, said: "We look forward to continuing to

vigorously pursue our claims against those who infringe our

client's intellectual property rights."

Created in 2016, Squishmallows exploded in popularity during the

COVID-19 pandemic, becoming a TikTok sensation and winning fans

like Lady Gaga and Kim Kardashian.

They have been part of Buffett's Omaha, Nebraska-based

conglomerate since Berkshire bought Jazwares' parent, the

insurance holding company Alleghany, in October 2022.

Kelly Toys accused Build-A-Bear of intentionally undermining its

goodwill and causing confusion by copying Squishmallows' look

and feel, including "simplified Asian style Kawaii faces" and

"velvety velour-like" fabric.

Build-A-Bear introduced Skoosherz in January, in

anticipation of Valentine's Day, saying they were "uniquely

styled for optimal hugging benefits."

It is separately suing Kelly Toys in St. Louis federal

court, seeking a declaration it did nothing wrong.

Build-A-Bear claimed it based Skoosherz on its existing

plush animals, and its advertising left no doubt who made them.

Both lawsuits were filed on Feb. 12.

The cases are Kelly Toys Holdings LLC et al v Build-A-Bear

Workshop Inc ( BBW ), U.S. District Court, Central District of

California, No. 24-01169; and Build-A-Bear Workshop Inc ( BBW ) v Kelly

Toys Holdings LLC et al, U.S. District Court, Eastern District

of Missouri, No. 24-00211.