As the old saying goes, “functionality killed the trade dress.” OK, that’s not actually a saying, but it should be. Lawsuits pitting one plush toy against another have brought trade dress law to the forefront. At the heart of the battle is whether there are protectable nonfunctional elements in Kelly Toys’ Squishmallows such that Build-A-Bear’s use of similar elements in its Skoosherz constitutes trade dress infringement.
Trade dress is the design and shape of product packaging, or the design and shape of the product itself, i.e., its configuration. U.S. trademark law protects trade dress if it serves the same source-identifying function as a trademark and is not functional. Section 2(e)(5) of the Lanham Act prohibits registration on the Principal Register of “matter that, as a whole, is functional.”
