Kelly Toys Holdings, LLC v. Build-A-Bear Workshop, Inc.
2:24-cv-01169
C.D. Cal.Jul 15, 2024Background
- Kelly Toys manufactures Squishmallows plush toys and claims trade dress and copyright rights in their design.
- Build-A-Bear released Skoosherz plush toys in 2024, which Kelly Toys alleges infringe on its intellectual property.
- Kelly Toys sued Build-A-Bear for trade dress infringement, copyright infringement, and related California law claims.
- Build-A-Bear moved to dismiss the complaint for failure to state a claim, challenging the adequacy and plausibility of the trade dress and copyright allegations.
- The court reviews motions to dismiss under Rule 12(b)(6), assuming the truth of well-pleaded facts but not legal conclusions or inadmissible evidence outside the pleadings.
- The order addresses and rejects Build-A-Bear’s arguments and denies its motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of trade dress description | Provided five-element detailed description and examples showing trade dress | Description is vague and amorphous, not enough to notify defendant | Adequately described to put defendant on notice |
| Consistent overall look requirement | Asserted trade dress covers products sharing key visual elements, discovery can clarify scope | No single consistent overall appearance across 3,000+ products, so no trade dress possible | Consistent-overall-look test not applied at pleading stage; discovery appropriate |
| Secondary meaning | Pleaded advertising, sales volume, and consumer association evidence for source identification | Merely marketing efforts and sales numbers, not enough for secondary meaning | Pleaded enough facts to plausibly allege secondary meaning |
| Copyright substantial similarity | Skoosherz copies protected expressive elements beyond subject matter (shape, facial features, etc.) | After filtering out unprotectable elements, no substantial similarity "as a matter of law" | Not so dissimilar to warrant dismissal; substantial similarity plausible |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (Pleading standard for Rule 12(b)(6) motions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (Rule 12(b)(6) requires plausibility, not conclusory legal statements)
- Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138 (Elements for trade dress infringement and secondary meaning)
- Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 (Definition and protection requirements for trade dress)
- United States v. Ritchie, 342 F.3d 903 (Documents considered on motion to dismiss)