In the 1990’s, Build-A-Bear Workshop, LLC’s (Build-A-Bear) experiential retail approach was revolutionary. By 2012, that same approach had gone stale. Build-A-Bear had to transform. Stores started closing, including a Build-A-Bear Workshop® located at the Mall in Columbia. My daughters and I were sad to see the store close in 2013.
We were happily surprised to see the store re-open in 2014. We saw a change in store appearance, most notably, in the appearance of the toy stuffer. The former store included a toy stuffer located in the middle of the store floor and comprising a rectangular stuffing bin. In contrast, the re-opened store included a larger toy stuffer located closer to the entrance to the store and comprising a funnel shaped bin. In 2015, CNBC interviewed Sharon Price John, Chief Executive Officer of Build-A-Bear Workshop (Build-A-Bear isn’t just a store anymore), and she reflected on the strategic changes to Build-A-Bear retails stores. Ms. John described the appearance and location of the toy stuffer as reminiscent of a “front-of-store-theater.” She also described the toy stuffer as churning the stuffing “like cotton candy.” Accordingly, Build-A-Bear made strategic design changes to the toy stuffer.
Protecting the Build-A-Bear brand was of paramount importance, as the brand remained strong while the Build-A-Bear retail business struggled. Protecting the toy stuffer design was central to protecting the Build-A-Bear brand. With that in mind, Build-A-Bear filed design patent applications to protect the toy stuffer design.
When we use the term, “patent,” we generally refer to utility patents. Both utility and design patents give a patent owner a right to stop others from making, using, or selling a patented invention. A utility patent may be granted to a patent applicant of a novel and useful invention, and gives the patent owner rights for 20 years from the filing date of a patent application. In contrast, a design patent may be granted to a patent applicant of a novel ornamental design applied to an article of manufacture, and gives the patent owner rights for 15 years from the date of patent grant. Further, both utility and design patents claim an invention, but the claims are very different. A utility patent includes at least one independent claim reciting novel aspect(s) of the patented invention. The written specification and drawings enable a person in the art to make the claimed invention. In contrast, a design patent includes one claim, and the written description identifies drawings of the design invention. Design patents rely heavily on patent illustrator skill to claim novel aspects of an ornamental design.
At least two design patents protect a Build-A-Bear toy stuffer design. U.S. Design Patent No. 427209 (‘209), issued on June 27, 2000, is shown on the left, and U.S. Design Patent No. 801398 (‘398), issued on October 31, 2017, is shown on the right. Both design patents recite a single claim: “The ornamental design for a stuffing machine, as shown and described.” Prior to closing in 2013, the toy stuffer in the Build-A-Bear Workshop® located at the Mall in Columbia resembled Patent ‘209. When it re-opened in 2014, the toy stuffer resembled Patent ‘398. As. Ms. John described above, the ‘398 toy stuffer design supports the business transformation strategy, as it appears reminiscent of a carnival or theater ticket window.
Build-A-Bear made dramatic changes to its retail stores to remain relevant. Those changes included, at least, toy stuffer design changes. The toy stuffer design was critical to the Build-A-Bear brand and marketing campaign, so Build-A-Bear protected the toy stuffer design with design patents.
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