Costume Maker Goes Bananas Over Alleged Copyright Infringement


Halloween may have come and gone, but Rasta Imposta (yes, that’s the company’s real name) continues to fight the proliferation of what it sees as copycat costumes. In 2017, the manufacturer went after a high-profile vendor — Kmart  — in a suit that it settled in less than a month, but that’s far from the only company that has seen its day in court with the colorfully named costume maker.

According to the complaint, Kmart had since 2008 purchased costumes including the banana suit from Rasta Imposta, which you might remember for its giant rasta hats with sewn-in dreadlocks. But after a scuffle over the purchase order last year, Kmart said it would find another vendor for the beloved banana suit.

That’s when Rasta Imposta discovered Kmart’s “Totally Ghoul Banana Men’s Halloween Costume.” The costume maker called the getup a “direct replication and knock-off of Rasta Imposta’s copyrighted Banana Design” and claimed Kmart was appropriating its intellectual property. Rasta Imposta sued for copyright infringement, trade dress infringement, false advertising and unfair competition.

The company claims to have owned copyright registration for the suit since 2010, and it drew from the Trademark Manual of Examining Procedure in its case against Kmart: The appearance and trade dress of Rasta Imposta’s distinctive Banana Design is identified by a combination of arbitrary and distinct visual elements which make up its overall appearance, design, and trade dress, including, but not limited to the Banana Design’s bright yellow color with dark tips at the ends, the lines running down the sides, the Banana Design’s placement of the banana ends, and the cutout holes in the Banana Design” [writer’s emphasis]. In addition, the complaint notes that it is “crucial” to Rasta Imposta’s brand that consumers are able to avoid confusion about the source of the product and recognize it as a unique product of the company. Rasta Imposta even called out Kmart for having a model wear the costume in the same fashion—with black dress shoes, long black pants and a long black shirt.

The case drew ample press around Halloween, perhaps because Americans were estimated by the National Retail Federation to drop a record-breaking $9.1 billion on the holiday in 2017—no doubt some of that figure went to adult-sized banana suits.

While this particular case was settled and dismissed in October, peeling back the layers of Rasta Imposta’s legal history reveals that the case against Kmart was nothing new. A Rasta Imposta representative declined to comment on the settlement, which according to court documents includes one year of court jurisdiction requested by the company to enforce the agreement.

The company was involved in another case in October, this time with Kangaroo Manufacturing Inc. The complaint looked strikingly similar—copyright infringement, trade dress infringement, false advertising and unfair competition—and the circumstances aren’t much different either. According to the complaint, Kangaroo purchased thousands of the banana costumes, and, after their business relationship deteriorated, Rasta Imposta claimed Kangaroo “copied” the design.

But the buck doesn’t stop there—and neither does the banana. Dig deeper, and you’ll find the 2014 case when Rasta Imposta claimed that Party City knocked off not only Rasta Imposta’s banana costumes, but also costumes of ketchup and mustard bottles, hot dogs, bacon and eggs, a whoopie cushion and a penguin. (The case was dismissed as settled two months later.)

Go back further still, to 2010, and find the case in which Rasta Imposta discovered rival Fun World was copying the banana suit. They eventually came to a settlement agreement, which allowed Fun World to “continue to manufacture a banana design that was a ‘bruised’ or browned banana design with a hat. The color of this banana was not bright yellow; it was browned.” According to Rasta Imposta, the brown color of the bruised banana costume was enough to distinguish it from the company’s standard banana costumes. In 2012, Rasta Imposta filed another suit, claiming Fun World had returned to copying the regular banana design. (The case wrapped the next month with a joint stipulation and order of dismissal.)

The thread of argument between all these cases is nearly identical, with Rasta Imposta’s claims that other designs were substantially similar to create confusion and violate the copyright, and the cases tend to settle and resolve themselves. And while Rasta Imposta claims to have first introduced the banana suit to the market in 2001, photographic evidence shows that people have been donning banana costumes for decades. And while Rasta Imposta claims to have first introduced the banana suit to the market in 2001, only time will tell who will be the top banana next season.

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