Every now and then an intellectual property story comes along that so grabs your attention that for a brief moment your mind completely forgets about the B word (yes Brexit). Today it was news that the copyright claim made by Rasta Imposta Costumes against Kangaroo Manufacturing has had another airing, this time in the 3rd US Circuit Court of Appeals in Philadelphia. In this court a lawyer is maintaining a straight face while he tries to convince the Board of Appeals to overturn the decision made by a Court in June finding that Kangaroo Manufacturing had infringed copyright in a banana costume in which Imposta claimed rights. At the original hearing the judge found that copyright subsisted in the Rasta Imposta design and that the costume produced by Kangaroo infringed the design, Counsel for Kangaroo are claiming before the Appeals Court that there is nothing that would be protected by copyright in the Rasta Imposta banana design. It was he claimed, just a banana with no additional features such as sunglasses or brown spots. If this seems like an odd argument Google banana costumes for an eye opening treat as to the variety available.
Opposing Counsel for Imposta claims there are many ways to conceive a banana design so the fact that the Kangaroo design is exactly the same as the Rasta Imposta design means that copyright has taken place. The lower court found in favour of Rasta Imposta in June though the decision was split so there is certainly a risk that the decision could be reserved.
This banana costume dispute is all about copyright and arguments such as the originality of the costume which are relevant and have been aired in court. In the UK, designers of banana costumes would be able to rely on design right, either registered or unregistered to protect a design of this type. Unregistered design right arises automatically in respect of any design which is original and not copied from another design. Registered rights are granted to all designs that are novel and can be used by a designer to extend the term of protection for a design to 25 years.
Whatever you think about banana costumes I am sure there is quite a lot of work that goes into designing one. I am imaging myself trying to design one and potentially making a right fruit salad of it all!!
At Briffa we have registered some fun designs over the years. We haven’t yet done a fruit costume but we wait in hope.
Written by Margaret Briffa, Solicitor
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