This Suit is Bananas

 In Business Entities, Copyrights, Design, Fashion

While perusing the Halloween aisle at the store, you can see some familiar costumes with unfamiliar names. There is a good reason for that. If a costume is packaged and labeled with a trademarked name, the costume has most likely infringed a registered trademark and/or copyright. However, if the costume does not display these trademarked names, the outcome becomes more complicated.

In 2011, SCG Power Rangers LLC, the company that owns the Mighty Morphin Power Rangers franchise and the intellectual property rights therein, filed a suit against the website Underdog Endeavors, owners of for selling costumes similar to the Power Rangers’ outfits. In addition, the company claimed violations of the Lanham Act by alleging the defendant created confusion, making it appear that they were officially endorsed merchandise.

The Copyright Act only provides protection to the elements of the artist’s original work if those elements can be separated from the garment’s utilitarian function. Because of this, most apparel is not eligible for copyright protection, since a costume can serve the utilitarian purpose of being clothing as well.

In the Power Rangers case, both parties agreed to settle, but the question remains whether fashion design and clothing can be given copyright protection. Proposed legislation in 2012, backed by Senator Chuck Schumer, was the latest attempt to amend the Copyright Act to extend protection to fashion design. Because it did not pass, the confusion lingers on.

More recently, a New Jersey company named Rasta Imposta has accused retailer Kmart of ripping off the design of its full-body banana costume by creating its “Totally Ghoul” men’s banana Halloween costume.

Rasta Imposta filed a complaint last week with the federal court in Camden, New Jersey against retailer Kmart and its parent company, Sears Holdings Corp. They are seeking unspecified damages, citing copyright infringement, trade dress infringement, false advertising and unfair competition. The speculated impact could be a substantial amount, since U.S. shoppers are expected to spend over $3 billion on costumes alone this year.

Rasta Imposta claims Kmart’s version of the 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.” In addition, the company alleges they have suffered significant financial harm and “irreparable harm to its reputation as a result of Kmart’s conduct.”

Although still in progress as this Halloween approaches, this case could create an impact on the costume industry for years to come.


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