Third Circuit Reinforces Banana-Costume Injunction

PHILADELPHIA (CN) — Defending the intellectual property in a full-body banana costume, the Third Circuit upheld an injunction Thursday against a costume maker that had aped the idea.

Rasta Imposta obtained copyright protection for the costume nearly a decade ago and brought the underlying lawsuit against Kangaroo Manufacturing, its former customer.

Though Kangaroo argued that the costume was not copyrightable — there are only so many ways to design a banana — the Philadelphia-based federal appeals court affirmed Thursday for Rasta.

Noting 20 different banana costume designs, the appeals court found that Kangaroo copied multiple nonutilitarian features of Rasta’s costume, including curved lines coming down the sides and the black tips of the banana. 

“Although a banana costume is likely to be curved, it need not be — let alone in any particular manner,” U.S. Circuit Judge Thomas Hardiman wrote for a three-person panel. “And although a banana costume is likely to have ends that resemble a natural bananas, those tips need not look like Rasta’s black tips.”  

Flaster Greenberg attorney Alexis Arena applauded the decision for her client, Rasta. 

“The protection of intellectual property rights is particularly important to companies like Rasta Imposta, which pride themselves on creating unique and innovative costume designs,” Arena said in an email. 

David Schrader, an attorney for Kangaroo with the firm Paykin Krieg Adams, did not immediately respond to an email seeking comment.

Judge Hardiman was joined in the majority by U.S. Circuit Judge Michael Chagares and U.S. District Judge Mitchell Goldberg, sitting by designation from Pennsylvania’s Eastern District. 

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