Miami Magistrate Rejects MTV Star’s T-Shirt Lawsuit Against Abercrombie & Fitch

What’s in a nickname? Michael Sorrentino, a television personality best known for his appearances on the MTV reality series “Jersey Shore,” claims a federal trademark for his self-described nickname. “The Situation.” This led Sorrentino and his company, MPS Entertainment, LLC, to sue the well-known clothing retailer Abercrombie & Fitch over the sale of a parody T-shirt using the phrase, “The Fitchuation.” In July, a federal magistrate judge in Miami granted Abercrombie & Fitch summary judgment and dismissed Sorrentino’s claims.

The Situation vs. The Fitchuation

Abercrombie & Fitch sold its “The Fitchuation” shirts in stores and online between February 2010 and June 2011. Sorrentino filed his federal trademark application for “The Situation” in October 2010. MPS sells its own T-shirts with “The Situation” mark and logo.

In August 2011, Sorrentino appeared in a “Jersey Shore” episode wearing Abercrombie & Fitch-branded pants. The company then sent the show’s producer what amounted to a cease-and-desist letter, offering Sorrentino $10,000 not to wear Abercrombie-branded clothing in future episodes. The company also issued a press release stating it had no association with Sorrentino. In 2012, Sorrentino and MPS sued Abercrombie, alleging, among other things, trademark infringement, violation of Sorrentino’s “right of publicity” under Florida law, and false advertising, all related to the prior T-shirt sales and the 2011 press release.

Drawing the Lines In Trademark Infringement

U.S. Magistrate Judge John. J. O’Sullivan filed an opinion on June 28 of this year granting Abercrombie’s motion for summary judgment against Sorrentino and MPS. With regard to trademark infringement, O’Sullivan found that Sorrentino did not begin selling his own branded T-shirts until several months after Abercrombie ceased selling their parody shirts. Thus, Sorrentino could not assert any common law rights over those shirts. Furthermore, Sorrentino failed to present any evidence that consumers were confused into believing by “The Fitchuation” T-shirt came from him and not Abercrombie.

O’Sullivan was equally unimpressed by Sorrentino’s claim that Abercrombie’s press release asking him not to wear their apparel somehow violated his purported trademark and publicity rights in “The Situation” nickname. As O’Sullivan noted, the press release “did not directly promote a product or service,” even though it mentioned Abercrombie’s website. Florida law prohibits the use of an individual’s “name, portrait, photograph or other likeness” in commercial advertising without permission, but simply mentioning a public figure’s name in a press release or news article does not qualify.

Sorrentino also alleged violations of Florida law prohibiting “unfair competition” and “misleading advertising.” But as those claims were based on the same underlying trademark infringement claim that O’Sullivan rejected, he likewise granted Abercrombie summary judgment on those issues.

Protecting Your Own Store

Florida retailers must always be mindful of trademark claims that could apply to any product it manufactures or sells. The are related, yet distinct, state and federal laws that govern the commercial use of various names, marks and designs. It’s a veritable minefield of potential legal liability. That’s why it’s important to work with an experienced Florida retail attorney who can advise you on the constantly evolving legal environment. Contact Naples attorney John S. Sarrett today at (239) 330-2359.

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