The lawsuit that went bananas

CAMDEN, N.J. •Theissues that come before Judge Noel L. Hillman in federal court in Camden, N.J., involve the usual sober matters — allegations of Medicaid fraud or child pornography or overcrowding in jails. They inevitably lead to mountains of dense legal documents with stultifying terms like “collateral estoppel” and “implied warranty of merchantability.”

Then came something unexpected — a dispute about bananas, or more precisely, a lawsuit about costumes that look like bananas and the two companies that make them. One company maintained that the other was manufacturing look-alikes that had been copied from them.

Hillman could not help himself. He used terms like “bananafest” and “bananapalooza” at a hearing, after wondering “whether the Founding Fathers had banana costumes in mind” when they drafted the Constitution.

Later he played art critic, declaring that the costumes in question were “unlikely to end up in the Philadelphia Museum of Art.” He also weighed cheerleaders’ outfits, which had figured in a 2017 copyright case, against what he was weighing in the banana case — in legal terms. His conclusion: “It seems safe to posit that there is no universal view of what a banana costume is or what it should look like.”

It is hard to resist the temptation to call the judge’s 35-page opinion, issued on May 29, a split decision, because he ruled in favour of the company that brought the lawsuit, Rasta Imposta of Runnemede, N.J., on two issues, and in favour of the other company, Kangaroo Manufacturing, on one.

He issued a preliminary injunction barring Kangaroo Manufacturing from selling its banana costumes, declaring that Rasta Imposta had “a reasonable likelihood of success” on copyright infringement claims.

Still, he ordered Rasta Imposta to post a $100,000 bond as security, just in case Kangaroo Manufacturing ended up winning when the case went to trial. Kangaroo has since appealed the injunction.

Rasta Imposta’s website shows a bunch of bananacostume products: banana dresses, banana hoodies, “zombie banana” outfits and the “Chiquita Banana,” with the produce producer’s blue logo. It also makes costumes that look like avocados, maneating sharks and giraffes, among others.

So perhaps the evidence presented in the case was to be expected. There were no crime-scene photos or hair or fibre samples. Instead, the lawyers hauled in four sets of costumes, two from Rasta Imposta and two from Kangaroo Manufacturing. Rasta Imposta’s lawyers also submitted photographs of more than 20 other banana costumes.

Hillman — who has been on the federal bench for 12 years and who, earlier in his career, was the chief prosecutor in the corruption investigation of a disgraced Republican lobbyist, Jack Abramoff — did not indicate whether he had tried on any of the costumes. Nor did he note whether he had gone to a supermarket to inspect a real banana, but he did not need to leave the courtroom to do that. A lawyer for the defendant, David Allen Schrader, brought one to a hearing in January.

At the judge’s mention of “bananafest” and “bananapalooza,” a lawyer for Rasta Imposta, Alexis K. Arena, did her best to keep the discussion sober and earnest.

“It is humorous, your honour,” she said, “but it is also very big business.”

The judge’s decision went into enough detail about costumes, down to the location of the cutouts for the wearer’s head and arms, to make someone reading it go — forgive us — bananas. He described “the soft, smooth, almost shiny look and feel of the chosen synthetic fabric” and “the bright shade of a golden yellow and uniform colour that appears distinct from the more muted and inconsistent tones of a natural banana.”