L.L. Bean, Inc. v. Drake Publrs., Inc.

L.L. Bean, Inc. v. Drake Publrs., Inc.

Opinion

 [***1753]   [*27]  BOWNES, Circuit Judge.

Imitation may be the highest form of flattery, but plaintiff-appellee L.L. Bean, Inc., was neither flattered nor amused when High Society magazine published a prurient parody of Bean's famous catalog. Defendant-appellant Drake Publishers, Inc., owns High Society, a monthly periodical featuring adult erotic entertainment. Its October 1984 issue contained a two-page article entitled "L.L. Beam's Back-To-School-Sex-Catalog." (Emphasis added.) The article was labelled on the magazine's contents page as "humor" and "parody." The article displayed a facsimile of Bean's trademark and featured pictures of nude models in sexually explicit positions using "products" that were [**2]  described in a crudely humorous fashion.

L.L. Bean sought a temporary restraining order to remove the October 1984 issue from circulation. The complaint alleged trademark infringement, unfair competition, trademark dilution, deceptive trade practices, interference with prospective business advantage and trade libel. The United States District Court for the District of Maine denied Bean's request for a temporary restraining order. Thereafter, both parties sought summary judgment. The district court granted summary judgment in favor of Drake on the claims for trade libel and interference with prospective business advantage. It denied summary judgment to both parties on Bean's claims for trademark infringement, unfair competition and deceptive trade practices, leaving the factual question of "likelihood of confusion" for resolution at trial. L.L. Bean, Inc. v. Drake Publishers, Inc., 625 F. Supp. 1531 (D. Me. 1986).

The district court did, however, grant Bean summary judgment with respect to the trademark dilution claim raised under Maine law. Me. Rev. Stat. Ann. tit. 10, § 1530 (1981). ¹ It ruled that the article had tarnished Bean's trademark by undermining the goodwill and reputation [**3]  associated with the mark. Relying on two affidavits presented by appellee, the district court found that Bean had suffered harm from the publication of the article. The court rejected Drake's claim that the Maine statute did not encompass allegations of tarnishment caused by parody. The court also held that enjoining the publication of a parody to prevent trademark dilution did not offend the first amendment. An injunction issued prohibiting  [***1754]  further publication or distribution of the "L.L. Beam Sex Catalog." L.L. Bean v. Drake Publishers, 625 F. Supp. at 1530. After its motion for reconsideration was denied, Drake appealed the order enjoining further publication of the Sex Catalog.

Since there are no Maine cases delineating the scope of the Maine anti-dilution statute, we do not, at this time, review the district court's ruling on the reach of the statute.  [**4]  Because we think it would be inappropriate for us to construe the statute in the first instance, we shall confine our review to whether the injunction offends the first amendment.

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