In 2017, Rasta Imposta sued Kmart for copyright infringement because Kmart was selling a virtually identical banana costume (See Blawg Post dated 10/31/2017). The parties settled. Then Rasta Imposta’s competitor, Kangaroo Manufacturing Inc. started selling a substantially similar banana costume. The founder of Kangaroo had once worked for Rasta Imposta and knew that Rasta Imposta had registered the copyright in the banana costume. But Kangaroo manufactured and sold the banana costume anyway.

Captain America, Thor and Iron Man can’t save your party guests without a license. %CUT% Characters for Hire, LLC (“CFH”) advertises premium entertainment for parties and private events by booking actors dressed like popular characters. CFH offers hero characters and famous characters from popular scifi/fantasy movies. Understanding that Disney, Marvel and LucasFilm own the rights to characters that fall into those categories, CFH used generic names like "Big Green Guy" (Hulk) and “The Dark Lord” (Darth Vader). Similarly, CFH advertised themed parties that referenced Plaintiffs’ movies, such as “Frozen Themed” (Frozen), “Avenging Team” (The Avengers), and “Star Battles” (Star Wars). But CFH used the original images of the characters in its ads (see picture). After CFH ignored several cease and desist letters, Disney, Marvel and LucasFilm sued. The court entered summary judgment against the plaintiffs on trademark infringement. The court appeared to put a lot of weight on the fact that the plaintiffs couldn’t show actual confusion and there was enough notice that CFH was not affiliated with the plaintiffs. But the court will proceed on the other counts of unfair competition, dilution and copyright infringement. So CFH can’t breathe a sigh of relief yet.