There’s, legally speaking, “no situation” when it comes to an Abercrombie & Fitch parody of MTV reality star Michael Sorrentino, aka “The Situation.” A U.S. District Court in Florida has granted summary judgment in favor of the controversial clothier, ripping the stuffing out of Sorrentino’s suit against it, asserting violations of the Lanham Act, right of publicity, unfair competition and injury to business reputation.
Sorrentino appeared on the The Jersey Shore, the youth network’s reality show that debuted in December, 2009. In reference to his well-worked abdominals, he nicknamed himself “The Situation” and “Mike the Situation” and sought to put those phrases in common use about himself on the TV show. In February, 2010, A&F began selling “The Fitchuation” T-shirts exclusively through its branded stores and website. The retailer was frank about making fun of Sorrentino and said its nom de guerre was a play on words or parody of his nickname.
To capitalize on its campaign, after A&F sold the last of its T-shirts in June, 2011, it wrote to MTV Networks on Aug. 15, 2011, about an Aug. 11, 2011, Jersey Shore episode, objecting to Sorrentino so prominently wearing its clothing on air. A&F offered to pay Sorrentino, MTV Networks and other Shore cast $10,000 forgo wearing its wares, contending to do so for its brand was inappropriate and might confuse consumers about endorsement. A&F even issued a news release with this gibe. And The Situation sued.In June, 2012, MPS Entertainment LLC, owned by Sorrentino and his brother, sued Abercrombie & Fitch Stores Inc. and Abercrombie & Fitch Co., claiming: 1.) trademark infringement under common law; 2.) unfair competition and false designation of origin; 3.) false advertising; 4.) unfair competion under FL law; 5.) common law injury to reputation; and 6.) misappropriation of likeness for commercial purposes.
The court rejected the claims, granting summary judgment in favor of Abercrombie.
To establish a trademark infringement claim under the Lanham Act or the common law, “a plaintiff must show that (1) the plaintiff had enforceable rights in the mark or name and (2) the defendant made unauthorized use of it “such that consumers were likely to confuse the two.” U.S. Magistrate Judge John J. O’Sullivan considered seven factors and surmised that there was no likelihood of consumer confusion.
Sorrentino, who had started to sell his own T-shirts, failed to register for his trademark until after A&F introduced its parody, the court said. Availability of the parties’ T-shirts differed — his were sold only on officialsituation.com v. the retailer’s sold at its stores and website. And the reality star demonstrated no discernible relationship between the word “situation”’ and “the apparel or entertainment services” he provided.
O’Sullivan noting differences between “situation” and A&F’s visual and phonetic representation on its garb, wrote: “There is no evidence of A&F ‘palming off’ its T-shirt as that of the plaintiff’s, where, as here, the T-shirt has the Abercrombie and inside label and prominently uses A&F’s own famous trademark ‘Fitch’ as part of the parody.”
As for the false advertising claim, he said: “A&F used only so much of the plaintiff’s name as was reasonably necessary to respond to his wearing A&F’s brand on The Jersey Shore, and did not do anything that would suggest Sorrentino’s sponsorship or endorsement.” The company’s dig at him through its news release also “expressly disassociated Sorrentino from A&F, and the plaintiffs have conceded that no third party has expressed any confusion that the press release rejecting Sorrentino’s image somehow suggested sponsorship or endorsement by Sorrentino,” the judge said in his ruling.
Jersey Shore, while winning MTV record ratings, lasting six seasons and becoming a pop culture phenomenon, also was derided as a vulgar, vapid depiction — with denigrating ethnic stereotyping — of the lives of eight 20-somethings sharing a house for the summer. And if you’re not admitting you know all about The Situation and Snookie and who “hooked up” with whom: