It's certainly true that seeing someone dressed in a banana suit on Halloween hardly qualifies as news. A recent banana-themed article (we concede that there aren't many of those) points out that people across the country collectively spend about $3.4 billion on costumes for October's seminal party evening. And, reportedly, more than a few quid of that massive outflow goes toward banana costumes.
Indeed, notes the Chicago Tribune, "there are all sorts of banana outfits out there," which might account for a bit of confusion among many readers as to why the popular costume would become the focal point in an intellectual property infringement lawsuit.
The company Rasta Imposta -- which made banana costumes for Kmart for years and quit doing so this year following a contractual snafu -- concedes the point that it has a lot of competition.
Nevertheless, it contends, its suit is different from others. And Rasta Imposta, which gained copyright registration for the suit in 2010, states that Kmart's using another vendor this season to closely replicate its protected product qualifies as unfair competition and trade dress infringement. It seeks an injunction and damages for the alleged misappropriation of its intellectual property.
One case commentator notes that Rasta Imposta does not have to make any showing that its product is original to prevail. Indeed, it would instantly fail if it did, given the "dozens of banana suits" already crowding the market.
What is necessary, rather, is convincing evidence "that the expression of the subject is original," and Rasta Imposta quite confidently asserts that its costume presents a banana that is manifestly different and recognizable from others.
The company doesn't care a whit if Kmart sells banana costumes this Halloween. It just doesn't want them to look too similar to its own product.