I have never received as many high fives for a Halloween costume than the year a friend and I dressed as giant bananas with huge cartoon hands. But despite the ubiquity of these fruity outfits — as a simple Internet search will show you — the maker of one banana costume is accusing Kmart of dropping it as a vendor in order to sell its own alleged knockoff version.
It seems pretty straightforward: A yellow banana with holes out of it for a person’s face, hands, and legs. However, Rasta Imposta claims in a lawsuit [PDF] filed Wednesday in a New Jersey federal court that Kmart is infringing on its 2010 “Banana Design” copyright.
After selling Rasta Imposta’s banana costume every year since 2008, the complaint says Kmart told the company in late September that it had found another vendor for “that item.”
“Shortly thereafter, Rasta Imposta discovered that Kmart had begun offering the infringing Totally Ghoul Banana Men’s Halloween Costume (“Totally Ghoul Costume”), which is a direct replication and knockoff of Rasta Imposta’s copyrighted Banana Design,” the lawsuit reads.
And while there are surely a plethora of banana-themed outfits available — inflatable, sweatsuits, half-peeled, etc. — Kmart’s offering (on the right in the photo above) is way too close to Rasta Imposta’s version (on the left), the company claims.
Rasta Imposta says that when its banana costume debuted in 2001, theirs was the only design “with this distinctive overall appearance.”
But te Kmart costume “has the same shape as the Banana Design, the ends of the banana are placed similarly, the vertical lines running down the middle of the banana are placed similarly, the one-piece costume is worn on the body the same way as the Banana Design, and the cut out holes are similar,” reads the complaint.
While some third parties license the design from Rasta Imposta, Kmart doesn’t have a license ot use it, the company says.
“Kmart is not free to simply appropriate Rasta Imposta’s intellectual property for its own business advantage without Rasta Imposta’s consent,” the plaintiff claims, adding that Rasta Imposta “has suffered significant financial harm and irreparable harm to its reputation as a result of Kmart’s conduct.”
The lawsuit is seeking unspecified damages from Kmart and its parent, Sears Holdings Corp, for unfair competition and copyright infringement.
Kmart declined to comment on the complaint.