This upcoming Halloween, you might just happen to see people wearing banana costumes. Whether it is ironic or not, or whether the person had either Brian Griffin or Onision in mind, because heaven knows memes never die, you are bound to see one or two bananas who may or may not be in pajamas. That said, you might want to be careful with your costumes this year, since the bananas are now the subject of a copyright infringement lawsuit, and we have New Jersey to thank for that.
Be careful when choosing ‘another vendor…’
Rasta Imposta, a costume manufacturer for Silvertop Associates, has provided Kmart with banana costumes since 2008, having started selling the costume since 2001 and also obtaining a copyright registration in 2010. This year, however, Kmart decided not to renew their agreement and find “another vendor” to help fill the orders.
After noticing that Kmart was offering a similar costume, Rasta Imposta is now seeking damages from Kmart and its parent, Sears Holdings Corporation, for charges of copyright infringement, trade dress infringement, and unfair competition, and the case has gone to a federal court in Camden, New Jersey.
Here, I thought bananas usually came in those crescent-moon shapes?
Now, it should be perfectly legal to make another banana costume, but the lawsuit argues that Kmart’s new line is too similar to those developed by Rasta Imposta. Reportedly, they’ve citied a similar shape, the similar black ends of the banana, similar cut-out limbs, and even similar advertising.
As trademark lawyer Sonia Lakhany explained, according to Sentinel Source, “It’s not that the subject has to be original…It’s that the expression of that subject is original. That’s what copyright registration protects-the original expression of what you would call a normal object. There are many, many ways to showcase the same object in an artistic medium.”
At this time, the results of the suit is anyone’s guess. Kmart could argue that the designs are different enough, but the fact that they had a relationship with Rasta Imposta for nearly a decade is notable. Rasta Imposta notably filed a similar lawsuit in 2014 over a bacon-and-egg costume with Party City, although the case was settled, according to court records. Who knew food costumes were such big business?
