Following an appeal by the defendant, Flaster Greenberg clinched a favorable ruling for client Silvertop Associates, Inc. d/b/a Rasta Imposta (“Rasta Imposta”) in a copyright infringement lawsuit against Kangaroo Manufacturing, Inc. (“Kangaroo”). Rasta Imposta is an innovative Halloween costume designer and manufacturer who filed a lawsuit in the District of New Jersey after discovering that Kangaroo was manufacturing look-a-like banana costumes. In May 2018, the U.S. District Court for the District of New Jersey granted Rasta Imposta’s motion for preliminary injunction, which restrained Kangaroo from marketing, advertising, or selling the costume to consumers.
Kangaroo appealed that decision, and on August 1, 2019, the U.S. Court of Appeals for the Third Circuit agreed with the initial decision, ruling in favor of FG’s client and preventing the defendant from selling its look-a-like costume. The Opinion concludes that: “The artistic features of the costume, in combination, prove both separable and capable of independent existence as a copyrightable work. That sculpted banana, once split from the costume, is not intrinsically utilitarian and does not merely replicate the costume, so it may be copyrighted.” The Opinion further noted that the defendant’s design was “substantially similar to the banana costume created and sold by Appellee Rasta Imposta.”
Rasta Imposta opened its doors 26 years ago when Robert Berman, the company’s CEO, created the Original Rasta Hat with sewn-in dreadlocks. Since then, the company has seen substantial growth, offering a wide range of items from wigs and hats to costumes and accessories for both people and their pets. In addition to selling directly to consumers on sites such as Amazon, a large portion of their business model includes selling design licenses and costumes in bulk to third parties for distribution.
One of Rasta Imposta’s most popular costumes and best sellers is its distinctive Banana Design, which was introduced to the market in 2001 and registered with the U.S. Copyright Office in 2010. Since that time, Rasta Imposta has worked with Flaster Greenberg’s Intellectual Property team, and specifically, Alexis Arena and Eric Clendening, to ensure that its design is protected.
Robert Berman, Rasta Imposta’s CEO, stated, “For 26 years, Rasta Imposta has succeeded as a small family company in a marketplace occupied by much larger costume manufacturers and retailers. It has done this by coming up with popular, innovative designs like our lightweight banana costume, which was the first of its kind when it was introduced in 2001. We are grateful that the Court recognized the creativity and effort that goes into creating costumes like this one, and recognized our right to obtain copyright protection under the law.”
This copyright infringement case caught the attention of media outlets all over the world, including the New York Times and the ABA Journal. The appellate victory was covered in Law360, Bloomberg Law, The Guardian, TechDirt, IPWatchdog, and Courthouse News Service, and received a mention in The Hollywood Reporter.
