Orange County – Banana suit costumes are a popular favorite for Halloween, and it turns out there’s big money in them. Enough so that Kmart and Rasta Imposta are entrenched in a copyright lawsuit over a banana suit which is a registered U.S. copyright.
For nearly a decade since 2008, Kmart has been purchasing costumes from costume manufacturer Silvertop Associates which does business as Rasta Imposta. However, this year Kmart and Rasta Imposta failed to reach an agreement on payment terms resulting in Kmart choosing to use another vendor to fulfill banana suit orders. It was soon after this that Rasta Imposta noticed Kmart selling a replica of Rasta Imposta’s banana suit.
Rasta Imposta began selling its banana suit in 2001 and received a copyright registration for the design in 2010. The banana suit is one of the company’s most successful costumes and they license out the design every year. In the lawsuit, the complaint states, “Kmart is not free to simply appropriate Rasta Imposta’s intellectual property for its own business advantage without Rasta Imposta’s consent.” Thus far Rasta Imposta has not commented on how many banana suits it sells each year.
There are many different variations of banana suit costumes such as unpeeled bananas, half peeled bananas, jumpsuits, hoodies, and even zombie bananas. Rasta Imposta’s copyright would only protect the specific design or designs that it filed for and it would only have a claim against a manufacturer that created a substantially similar design. Copyright registration protects original works of authorship and apparel and costumes can be protected.
Other companies such as Target, Walmart, and Bed Bath and Beyond have their own banana suit costumes. Kmart could argue that its banana suit is sufficiently different from to Rasta Imposta’s banana suit and could possibly find other similar banana suits to claim that Rasta Imposta’s protection is very narrow. Kmart is also likely to try to invalidate Rasta Imposta’s banana suit copyright registration if it can find evidence that it is not original.
Because Rasta Imposta registered its copyright prior to the alleged infringement, and Kmart was obviously aware of Rasta Imposta’s costume design, Kmart is exposed to significant damages if it is determined to have infringed including statutory damages and attorneys fees.
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