This is Bananas! – The Dispute Over a Yellow Banana Costume for Halloween

Complaint at 6, Silvertop Assocs., Inc., D/B/A/ Rasta Imposta v. Kmart Corp. et al, No. 17-CV-07499-NLH-KMV (D.N.J. Sept. 27, 2017).

Halloween brings the battles over copyright, trademark, and trade dress disputes. Every year, companies compete to design a new and innovative costume to take over the market and get part of the estimated $9.1 billion that Americans will spend on the spooky holiday this year.¹ The National Retail Federation and Prosper Insights & Analytics predict that Americans will spend $3.4 billion just on costumes.² However, when that much money is at stake, some sort of litigation is likely to follow.

To continue this litigious tradition, wholesale costume designer Rasta Imposta filed a complaint in the United States District Court for the District of New Jersey on September 27, 2017, alleging that Kmart stole their “banana costume design.”³ Both versions of the banana costume are yellow with a black top where a banana is pealed; there is also a black tip on the bottom where one would hold the banana.⁴ The advertisements each portray a smiling Caucasian male wearing a black long sleeve shirt, black pants, and dark shoes with the banana costume over their clothes.⁵ Kmart calls their version of the costume “Totally Ghoul Banana Men’s Halloween Costume.”⁶

Kmart had an ongoing relationship with Rasta Imposta and purchased Halloween costumes from the company from 2008 to 2017, but the companies did not come to an agreement regarding the purchase order according to the complaint.⁷ Rasta Imposta claims that their version of the banana costume is distinct and is typically advertised with a man wearing all black clothing under the costume.⁸ Specifically, Rasta Imposta is suing Kmart for copyright and trade dress infringement, false advertising, and unfair competition.⁹ While a banana may seem like a common design, the complaint alleges that the banana costume is “inherently distinctive” and that Kmart is benefitting from Rasta Imposta’s goodwill.¹⁰

The obvious problem here is that a banana is in dispute, not some intricate or unique costume or character owned by a specific company. Trademark attorney Sonia Lakhany explained that “[i]t’s [ ] the expression of that subject [that] 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.”¹¹ For example, there are a plethora of different banana costumes online from different companies and many of them do look distinct.

However, this is not the first dispute over costumes. In October 2011, SCG Power Rangers LLC alleged that Underdog Endeavors violated copyright and trademark law by selling Power Ranger costumes.¹² In the 1990s, the creator of “Barney and Friends” threatened to bring legal action against 700 different stores for selling costumes that looked like the classic purple dinosaur.¹³ And despite clothing typically not being protected under copyright law because it is a “useful article,” elements of a design in a particular costume may be eligible for protection.¹⁴ So if you plan to be a banana for Halloween this year, make sure you are a distinct and unique piece of fruity deliciousness!