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Rasta Imposta, the makers of a generic banana costume, like the one made popular by the Peanut Butter Jelly Time flash video that took the internet by storm over a decade ago, has sued Kmart over their decision to sell a different generic banana costume. Rasta Imposta became a major player in the costume industry after creating the Rastafarian hat with attached dreadlocks.
The lawsuit alleges that the competing generic banana costume infringes on the copyrights of Rasta Imposta, as well as forms the basis of unfair competition, trade dress infringement, and false advertising claims. However, central to the lawsuit will be the question of whether Rasta Imposta's generic banana costume's design is so generic that it is not entitled to copyright protection.
As Ars Technia points out, prior to the recent SCOTUS ruling on the copyright protections of cheerleader uniforms, this case may not have even been possible. The Star Athletica v. Varsity Brands case opened the door for generic clothing features, like pleats, stripes, zigs and zags, to all receive copyright protection.
In Star Athletica, the court ruled that the shape, cut or dimensions of a cheerleading uniform were not protectable. But the court found that the design elements unique to a team are protected by copyright. Think Adidas's three stripe design. They can't stop people from using stripes, but they can stop people from using stripes like they do.
Nevertheless, this appealing case might not bear fruit for Rasta Imposta as its costume is as basic as it can get when it comes to banana costumes. The company is asserting that the placement of the head, arm, and leg holes, as well as the seams and placement of the black top and bottom, are unique enough to merit protection.
However, it is expected for Kmart to counter by arguing that each of these aspects are functional and thus not entitled to protection. Perhaps most surprising is that this is the third such lawsuit filed by Rasta Imposta. In the filing, it asserts that it licenses the banana costume copyright to other makers, and that Kmart did not obtain a license before putting their strikingly similar copy for sale in its stores.
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