The similarities between two smiling sea creature logos are causing a whale of a problem for a southern Maine clothing retailer who says he is caught in the crossfire of a trademark dispute.

Vineyard Vines, a national clothing and accessories brand based in Connecticut, is suing Mountain Tops Inc., an Arundel-based T-shirt company with retail locations in Kennebunkport and Ogunquit, for trademark infringement over the use of a cartoon whale logo on some of its products. Vineyard Vines also is suing Mountain Tops’ supplier, Minnesota-based wholesaler Lakeshirts Inc., or Blue 84, for allegedly knowingly and intentionally mimicking the trademarked smiling whale design. 

The images are not identical, but, according to the lawsuit, the “striking and otherwise unnecessary similarities,” between the two whales, both of which feature “a smiling whimsical left-facing anthropomorphic whale with an eye above its smile and an upwardly lifted tail fin,” are enough to cause confusion for buyers and harm to the company.

The alleged “mimicry” causes “irreparable harm” in several ways, the company said in the suit: It deprives Vineyard Vines of its right to determine how its image is presented, deceives and confuses the public as to the origin and sponsorship of the clothing goods, “wrongfully preys upon and cashes in on” the reputation and commercial value of Vineyard Vines and “irreparably harms and injures, or threatens to harm and injure” the reputation of Vineyard Vines for providing quality clothing goods

There are some differences between the Vineyard Vines logo and the one manufactured by Lakeshirts/Blue 84 and sold by Mountain Tops. The alleged copycat whale has water squirting out of its blowhole, for example, and the eye, smile and overall shape of the whale are slightly different.

Vineyard Vines, however, is seeking action for trademark infringement, trademark dilution, unfair competition, and “several related federal, state and common law causes of action,” according to the suit filed Aug. 3.

CAUGHT IN THE CROSSFIRE

Chuck Frazier, owner of Mountain Tops Inc., said in a phone interview on Tuesday that his company, which purchased only items offered by the wholesaler, is caught in the crossfire between two large companies.

“This suit is a dispute between Vineyard Vines and Lakeshirts,” he said. “I don’t think this case is about us.”

Frazier said he has “no idea” if the design infringes on the trademark.

“We simply bought the shirts from a vendor,” he said. “We did not design them. They are not custom.”

This is the first year that the seasonal shop has sold any items branded with the whale in question.

It was featured on a few infant and toddler garments, which Frazier said he removed as soon as Vineyard Vines notified the company of the issue July 7. He hoped that would be the end of it.

“We were very surprised by this suit,” he said. “We complied completely, we provided the details of what we sold, (and) next we knew, they filed the case.”

Vineyard Vines, which has more than 50 locations across the country, including one in Freeport, trademarked its smiling whale in 2005.

According to the lawsuit, the brand is “well known for its colorful, nautical and whimsical designs on its clothing products” and most notably, for its whale, which has become “an iconic symbol representing the Vineyard Vines clothing brand.” 

SURPRISED BY SUIT

Frazier said this is the first time in the company’s 40-plus year history that anything like this has happened.

“It’s stressful and difficult and we hope it doesn’t become more expensive, but it is up to those parties to settle their differences,” he said, noting that Vineyard Vines and Lakeshirts were engaged in a dispute before Mountain Tops even found out about the issue.

Mountain Tops is listed on the suit but has not officially been served, and Frazier hopes they never are.

“There’s nothing more we can do, we took them off sale immediately,” he said.

He has not obtained legal representation and is hoping he won’t have to.

Frazier added that Lakeshirts is a “very reputable and large company” that has been a “longtime and valued supplier” for the small apparel and accessories business.

Mike Sidders, a representative for Lakeshirts, declined to comment due to pending litigation.

Vineyard Vines is seeking a preliminary and permanent injunction, blocking the two companies from using the image and is asking the court to order the defendants to surrender all the products with the offending whale so Vineyard Vines can destroy the merchandise. The company also is seeking an account of all profits related to the sale of items with the whale image, and to award that money, or up to three times more, to Vineyard Vines, plus other monetary damages.

This is not the first time Vineyard Vines has gone after a Maine company for similarities between whale designs. In 2016, the retailer sued Patrick’s Inc., or Patrick’s By the Sea in Bar Harbor over a whale logo, but the suit was dismissed when, after three months, the shop still had not been served documentation of the lawsuit.

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