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Banana Split: Court Fight Breaks Out Over Halloween Costumes

Published on .

Credit: Illustration by Ad Age

This Halloween, you'll probably see someone in a banana suit. Yes, he or she will be outfitted in a bright yellow costume, their face filling a hole in the middle of the fruit as arms and legs poke through the polyester peel. Hilarious.

Turns out, those bananas are big money, so much so that one seller has gone to federal court to defend its banana designs. The phrase "banana suit" now has a dual meaning thanks to a complaint filed in New Jersey federal court. Silvertop Associates, a costume manufacturer which does business as Rasta Imposta, sued Kmart Corp. and Sears Holding Corp. on Wednesday, alleging copyright infringement, trade dress infringement, and unfair competition.

Since 2008, Kmart has purchased costumes from Rasta Imposta, but the two companies failed to reach an agreement this year and Kmart said it would use "another vendor" to fulfill banana costume orders, according to the complaint. "Shortly thereafter, Rasta Imposta discovered that Kmart had begun offering the infringing … costume, which is a direct replication and knockoff of Rasta Imposta's copyrighted Banana Design," 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."

Rasta Imposta first began selling the banana costume in 2001 and received a copyright registration in 2010. The company licenses out the design and considers the banana "one of the company's most important costumes." Rasta Imposta and its attorneys didn't reply to a request for comment, and it's unclear how many banana costumes the company has sold. A spokesman for Kmart declined to comment.

Come every October, Halloween creates very big business for retailers. Americans are expected to spend $9.1 billion on Halloween-related items this year, including $3.4 billion on costumes, according to a survey from the National Retail Federation and Prosper Insights & Analytics. Costumes are purchased by 69 percent of Halloween shoppers, and all of them are expected to spend an average of $83 on Halloween stuff such as candy, decorations, pumpkins, parties, and of course, banana suits.

With so much money at stake, there are bound to be lawsuits. In the past, these have included a case over Power Rangers costumes, and another Rasta Imposta suit. Filed in 2014, that one was brought against Party City over a ketchup-and-mustard costume set, a bacon-and-egg get up, and the banana costume. (The case was settled, according to court records.)

While two companies can certainly make dueling banana costumes, in the latest case Rasta Imposta argues that these two are entirely too similar, citing the shape, the black ends of the banana, the vertical lines down the middle of the costume, the cut outs for limbs, and even the advertising, which uses a similarly dressed model.

But how different do banana suits really have to be to avoid an intellectual property fight? "It's not that the subject has to be original," explained trademark lawyer Sonia Lakhany. "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."

Indeed, there are all sorts of banana outfits out there. A quick search on Amazon.com reveals dozens of banana costumes. There are unpeeled bananas, half-peeled bananas, banana hoodies, banana jumpsuits, baby bananas, doggy bananas, zombie bananas, top-hat bananas, and mustachioed bananas. Target Corp. sells inflatable bananas; Wal-Mart Stores Inc. sells banana tunics. You can even get a banana costume at Bed Bath & Beyond, which advertises its Halloween bananas as, well, "a-peel-ing."

Regardless of how similar two bananas might be, copyright cases tend to be long and drawn out. Kmart could argue that the design isn't sufficiently similar to Rasta Imposta's brand to warrant trade dress protections, or question why other brands haven't been sued for similar infringements.

That Kmart and Rasta Imposta had a relationship before this litigation is also notable. When two companies haven't previously interacted and create similar designs, the defendant can argue they acted in good faith and didn't willfully infringe on the plaintiff's design. However, in this case, the two companies had worked together for about a decade.

"There's always a question of if you can prove there's awareness," Lakhany said. The plaintiff has to show "they knew what it looked like; [that] they were in a deal.

--Bloomberg News

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