The Third Circuit Goes Bananas
Art Law

The Third Circuit Goes Bananas

In Silvertop Associates, Inc. v. Kangaroo Manufacturing, Inc. , the Third Circuit applied the two-part test set forth in the Supreme Court’s decision in Star Athletica, L.L.C. v. Varsity Brands, Inc. , and held that a full-body banana costume qualified for copyright protection. The dispute arose from a business relationship gone bad. Plaintiff Silvertop Associates, Inc., doing business as Rasta Imposta (“Rasta”), designs, manufactures and sells costumes for adults and children. In 2010, Rasta obtained a copyright registration for its full-body banana costume, and began selling it in 2011. In 2012, Rasta entered into a business relationship with Yagoozon, Inc. (“Yagoozon”), which had a sister company called Kangaroo Manufacturing, Inc. (“Kangaroo”). After the business relationship between Rasta and Yagoozon ended, in around September 2017, Rasta discovered Kangaroo selling full-body banana costumes that resembled Rasta’s full body banana costumes without a license. Rasta sued Kangaroo for copyright infringement, trade dress infringement, and unfair competition. After settlement discussions were unsuccessful, Rasta moved for a preliminary injunction and Kangaroo moved to dismiss. The District Court granted the motion for a preliminary injunction, but dismissed the unfair competition count. Kangaroo appealed and argued that Rasta did not hold a valid copyright in its […]

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