This post was written by Stacy Marcus and Sulina Gabale.
Jersey Shore star, Mike “The Situation” Sorrentino, lost his lawsuit last week against Abercrombie & Fitch (“A&F”) when a Florida federal judge ruled the case could not proceed to trial based on his trademark infringement, publicity rights, and false advertising claims related to a t-shirt the retail store sold labeled “The Fitchuation.”
Sorrentino gave himself the nickname on the popular MTV reality show when he frequently referred to his chiseled abs as “The Situation.” A&F issued a press release in August 2011 after the company noticed Sorrentino wearing a pair of A&F-branded sweatpants on an episode of the show. In his grant of summary judgment in favor of A&F Judge O’Sullivan noted the press release “explicitly attempted to disassociate the plaintiff’s name from the brand” by offering Sorrentino “substantial payment” not to wear their clothing on the show.
Although A&F claimed it wanted to disassociate itself with the Jersey Shore star, it began selling “The Fitchuation” shirts in 2010, and Sorrentino brought suit in 2011 seeking over $4 million in damages. A&F argued that “The Fitchuation” t-shirt was merely a “play on words or parody between the words “Fitch” and “Situation” and cannot establish likelihood of confusion under well-established Eleventh Circuit law. Judge O’Sullivan agreed and found that Sorrentino failed to meet his burden to present a triable issue of fact as to whether shirt was likely to confuse consumers. Judge O’Sullivan further noted the “Court can discern no relationship between the word ‘situation’ and the apparel or entertainment services that the plaintiffs provide.”
In an interesting twist, in addition to dismissing Sorrentino’s claim for trademark infringement, Judge O’Sullivan also struck down his right of publicity claim because the A&F press release “did not associate plaintiff’s name or likeness” with the shirt. Rather, the release had the exact opposite intention of disassociating the reality star from the A&F brand name. The Judge also dismissed Sorrentino’s claim that the release was an advertisement that violated state publicity rights law, saying the bottom of the release contained boilerplate language that “cannot be construed to directly promote a good or service.”