Banana costume sparks intellectual property litigation

For some in New York, it takes only the turning of the calendar page to October to begin preparations for Halloween. Cobwebs go up in trees, and pumpkins are arranged on the porch. Finally, the only thing left to do is to procure the perfect costume. Rather than becoming a goblin or Iron Man, some will purchase a costume to transform themselves into the funniest of fruits, the banana. However, banana costumes are currently the center of intellectual property litigation.

Rasta Imposta has long been the go-to manufacturer of affordable costumes. Among its most popular costumes is the banana, in which the wearer's face, legs and arms stick out from openings in the foam. The costume has so much "ap-peel" that other manufacturers have recently tried to copy it.

For 10 years, Rasta Imposta supplied banana Halloween costumes for Kmart and Sears, but the companies were unable to strike a deal for this year's bunch of banana costumes. When Rasta Imposta later discovered that the retailer was offering a costume that is apparently a blatant replication of Rasta Imposta's design, the costume-maker filed a lawsuit. Rasta Imposta has a copyright registration for the banana costume, and they feel the Kmart version is far too similar to their protected design.

There is no law prohibiting another manufacturer from creating a banana costume since the subject of the costume is not copyrighted. However, the unique expression of the subject is at the core of this intellectual property litigation, and some feel the previous relationship between the two companies may benefit the plaintiff in this case. Those in New York who feel their original designs have been appropriated for someone else's advantage have the right to seek legal counsel.

Source: sentinelsource.com, "Halloween is here with a copyright lawsuit over banana costumes", Polly Mosendz, Kim Bhasin Bloomberg, Sept. 29, 2017

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