Are you a Halloweenie? If you are, you value all things Halloween on this spooky day filled with tricks, treats, and… you guessed it – costumes. The National Retail Federation estimates that Americans will spend over $9 billion this year, with about $3.4 billion attributable to costumes. Costumes are big business.

The banana costume is at the center of a short-lived lawsuit filed in New Jersey federal court by Silvertop Associates DBA Rasta Imposta, against Kmart and its parent company Sears. The case is Silvertop Associates Inc d/b/a Rasta Imposta v Kmart Corp et al, U.S. District Court for the District of New Jersey, Case No. 17-07499. It was filed on September 27 but then voluntarily dismissed by Rasta Imposta just a few weeks later. The judge entered the dismissal order on October 17, 2017, after the parties settled. While we won’t get to battle for top banana, the allegations are interesting.

Rasta Imposta’s complaint alleges that its banana costume is “one of the company’s most important costumes” sold through several retailers. Kmart had purchased Rasta Imposta’s banana costumes for several years, but the relationship spoiled, leading Kmart to pick its bananas from a different tree. For the 2017 Halloween season, Kmart sourced its banana costume from a different supplier, which drove Rasta Imposta bananas.

The complaint alleges that the Kmart banana costume is a knockoff design and constitutes copyright infringement, unfair competition, and trade dress infringement. Copyrights are a sister form of protection to trademarks and protect the content of a work of authorship like books, software, and artistic designs and sculptures. Trademarks, on the other hand, are source identifiers. “Trade Dress” is a form of trademark protection that seeks to protect the look of the product itself or the packaging of the product rather than what the brand name by which the product is called. For example, Coca-Cola claims trade dress protection for the iconic design of its glass Coke bottle. The images below demonstrate the Coke® bottle design shown in line drawing form that appears on the trademark registration certificate (left) opposite an image of the finished product (right):

The dueling banana costumes of both parties as shown in the Complaint look like this:

Amid publicity over the lawsuit and peak costume-buying season, the lawsuit settled. The details of settlement have not been released, but CNBC reports that Rasta Imposta is going to continuing selling to Kmart in the future.

Rasta Imposta owns a federal copyright registration for its banana costume. The copyright would not prevent others from making their own banana costume because copyrights only protect a particular expression of an idea rather than the idea itself. Its claim of trade dress rights, however, is not supported by a registration. If Rasta Imposta can prove it owns trade dress rights to the banana design, it would be protected from similar designs that are likely to cause consumer confusion. But, this banana battle settled early, so we won’t get to see whether Rasta Imposta can peel away competitive banana designs.

It is worth noting that when considering how to best protect your company assets, you should consider both copyright and trademarks. The two together may be used as a 1-2 punch combination if you have to enforce. Logos and other artistic drawings may qualify for copyright protection in addition to trademark protection, so think about both paths.