Kmart has been silently suffering for some time now, falling eleven spots in L2’s most recent Digital IQ Index: Big Box. But the recent banana costume incident puts the retailer in a…well, spotty situation.

With a record 48% of adults choosing to dress up this year, the pressure to produce the perfect costume is on for both consumers and retailers. After failing to reach a purchasing agreement this year, New Jersey costume manufacturer Silvertop Associates, Inc., whose business name is Rasta Imposta, sued Kmart for copyright infringement, trade dress infringement, and unfair competition with regard to a certain snappy-looking banana costume.

While copyright infringement is nothing new, the move reflects a lack of direction on Kmart’s part when it comes to finding its place in the pantheon of big box retailers — especially when up against winners like Walmart and Target, which both ranked higher than Kmart in Digital IQ last year.

Upon first glance, the banana costumes in question do look strikingly similar. But a second look exposes a few telling differences. Much like Kmart’s oversaturated and often misguided attempts to add life to its brand, their banana costume radiates a lurid neon hue, almost one-dimensional in its appearance, while Rasta Imposta’s carries a more natural tone. Regardless of what unfolds in the next few days, the retailer’s recent actions, including declining to comment on the incident, all hint at the fact that it might be time for Kmart to split from its old image.

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