Company suing Kmart for stealing its banana costume settles

  • "Bananas are copyright-able," said Rasta Imposta CEO Robert Berman.
    From lawsuit filed with the United States District Court for the District of New Jersey
    From lawsuit filed with the United States District Court for the District of New Jersey

    The New Jersey-based costume company suing Kmart for stealing its banana costume has reached a settlement outside the court, said Rasta Imposta CEO Robert Berman.

    "We're going to continue selling to Kmart in the future," Berman told CNBC.

    Berman declined to provide details of the settlement.

    For almost a decade, Kmart had purchased Rasta Imposta's banana suit costume, a full-body yellow peel with a black stem at the head and foot. But this Halloween season Kmart didn't order the banana costume after "the parties had some difficulty reaching an agreement," and Kmart decided to buy its banana costume from another vendor, according to the court filing.

    Kmart declined to comment.

    When Berman saw Kmart's new banana costume, however, he went bananas.

    "When you take a design that has the same pattern, that's infringing," he said. "Bananas are copyright-able."

    Indeed, Rasta Imposta owns a copyright registration for the banana costume design with the U.S. Copyright Office. In September, Rasta Imposta filed a lawsuit against Kmart and its parent company Sears, seeking damages.

    The banana costume is an integral part of Berman's business - he sells thousands of the yellow suits each year, he said. "We've tried a lot of fruits and vegetables, but there's something about bananas that are inherently funny," he said.

    He refuted that he was trying to secure a monopoly over the banana costume. "Be creative and come up with your own interpretation of the banana," Berman said.

    But June Besek, a copyright professor at Columbia Law School, said that it's tricky to create a different kind of banana than the one we're all used to seeing at the supermarket.

    "There's just this overwhelming impression of a banana that you can't get around," Besek told CNBC.