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Updated: August 18, 2021

Thar she blows: Maine retailer sued by clothing chain in epic-like hunt for whale logo

Photo / William Hall Inside the Mountain Tops store in downtown Kennebunkport on Saturday, no whale-logoed merchandise was on display.

Moby Dick, take note.

A York County retailer has been sued over allegations of trademark infringement by Vineyard Vines LLC, a 127-store clothing chain that's known for its "smiling whale" logo and has mounted more than a dozen lawsuits in the past seven years because of it.

Mountain Tops Inc., which has offices in Arundel and operates two stores in Ogunquit and one in Kennebunkport, sold clothing with "intentional mimicry" of the whale image, Vineyard Vines claims in a complaint filed Aug. 3 in Portland federal court.

The complaint, citing federal and state law, seeks unspecified damages and an injunction against future sales of the products. The suit also names as a defendant Lakeshirts Inc., the Minnesota-based wholesaler that supplied Mountain Tops with clothing that carried the image.

"Like the iconic Vineyard Vines Whale Design clothing trademark, the designation appearing on the Infringing Clothing Products is a smiling whimsical left-facing anthropomorphic whale with an eye above its smile and an upwardly lifted tail fin," Vineyard Vines said in its complaint.

Mountain Tops co-owner Chuck Frazier on Tuesday told Mainebiz, "If there was any infringement, it was inadvertent, and we stopped selling the items immediately."

He said that after learning of the suit, his stores pulled from their shelves a "relatively small" quantity of infant and toddler garments that displayed a sociable cetacean.

A summons has been issued, according to court filings, but as of Tuesday afternoon the company had not formally received it. "We are hopeful this will be resolved without us being served," Frazier said.

Attorneys for Vineyard Vines did not answer repeated requests for comment in this story, nor did Lakeshirts immediately respond to Mainebiz.

Whale of a tale

The Vineyard Vines logo dates to at least 2003, according to the complaint, five years after brothers Ian and Shep Murray "set out to live the American dream and left their corporate jobs to create a line of whimsical men's neckties inspired by the colors and designs of Martha's Vineyard, a destination they loved to visit."

Vineyard Vines received a federally registered trademark for the whale logo in 2005. The Stamford, Conn.-based company has put it on an ever-expanding line of casual preppy products, including not only ties but shirts, shorts, hats and more.

The Murray brothers continue to own Vineyard Vines, which employs over 2,800 people and whose stores stretch from Freeport to 31 other states, the District of Columbia and Bermuda. Annual sales hit $476 million in 2016, according to Forbes magazine.

Mountain Tops is also a family business, founded in 1980 and today owned by Frazier, his mother and his sister. He wouldn't disclose sales figures but said the company employs 20-30 people, many of them seasonally.

According to Frazier, Mountain Tops is merely a Lakeshirts customer that ordered garments with a cute design. Lakeshirts, which also does business as Blue 84, has over 700 employees and dozens of presses that can turn out 35,000 printed shirts, hats and other clothing products per day, according to the company's website. The supplier also offers clients a library of graphic designs that number "into the six figures."

Frazier said, "We are the innocent bystander in something between two larger companies ... This is analogous to a hardware store buying a line of paint brushes or something and subsequently finding out there’s a trademark or patent dispute between paint brush manufacturers."

Unlike a paint brush, however, the Mountain Tops merchandise isn't simply off the rack. According to Vineyard Vines, the "infringing clothing products" included ones with "Kennebunkport" spelled out, and on Saturday the company's bustling downtown store there was filled with other such semi-custom products.

None of them sported the image of a whale.

Leviathan litigation

It's not unusual for a company with a national footprint to defend its trademarks in local courtrooms. Vineyard Vines has been doing so, perhaps zealously.

Since 2014, the company has pursued at least 13 similar trademark suits, according to Mainebiz research. They include a 2016 suit against Patrick's Inc., a Bangor business operating Patrick's By the Sea gift shop in Bar Harbor. In that case, Vineyard Vines claimed it had warned the retailer as far back as 2009 not to use a whale image nearly identical to the registered logo. The case was ultimately dismissed.

Photos / U.S. Department of Justice, William Hall
Clockwise from upper left, photos show a shirt that was allegedly for sale at Mountain Tops; a long-sleeve shirt displayed at Vineyard Vines' Freeport store; a sweatshirt sold years ago at Patrick's By The Sea in Bar Harbor, according to Vineyard Vines; and a shirt it claims was sold at a store in Delaware.

In another instance, Vineyard Vines filed a $12 million suit against Margaret Josephs, a former star of the reality TV show "The Real Housewives of New Jersey," who allegedly used the leviathan logo in her luxury goods business, the Macbeth Collection. That case was settled in 2018 after legal costs nearly bankrupted Josephs, according to media reports. 

Vineyard Vines has also sued for trademark infringement in Delaware, Pennsylvania, New York and elsewhere. A suit is currently underway in Connecticut against a group of two dozen websites allegedly selling merch with the logo. Vineyard Vines employs a North Carolina law firm to handle most of the cases.

Such legal action appears to be in vogue.

The Fashion Law, a trade publication, reported last year that in a survey of 351 fashion-industry attorneys, a whopping 85% handled infringement cases in 2019, up from 74% in 2017. In addition, 75% of the survey participants were forced to litigate.

The industry has become rife with so-called "trademark bullies" that are extra-aggressive in defending their intellectual property, the publication noted. It cited a complaint against jean giant Levi Strauss & Co. as one example. Coincidentally, Levi's filed a trademark infringement suit in 2017, over the use a distinctive pocket tab, against Vineyard Vines.

Photo / William Hall
The Vineyard Vines outlet in Freeport displays the whale trademark prominently on outdoor signs and, below, even on a hand sanitizing station.
Photo / William Hall

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