July 03, 2013 8:20am PT by Eriq Gardner
'Jersey Shore' Star Loses 'Fitchuation' Lawsuit to Abercrombie & Fitch
Here's "The Situation," or Jersey Shore's Mike Sorrentino, who sued Abercrombie & Fitch when the clothing retailer came out with a T-shirt bearing the phrase "The Fitchuation" and also offered in a press release to pay $10,000 if Sorrentino would not wear A&F clothing on the show.
Here's the outcome, as Sorrentino has now lost his lawsuit that alleged that A&F had committed trademark infringement, unfair competition, false advertising, injury to business reputation and misappropriation of likeness.
A Florida federal judge just granted A&F summary judgment, while shooting down each of Sorrentino's claims.
Sorrentino might have given himself the the nickname "The Situation" because his abs were rock-hard, but U.S. District Judge John O'Sullivan finds his trademark claim over T-shirts to be soft and flabby. Here's the full ruling.
The judge writes, "Although the word 'situation' is not a word that was coined or made up by the plaintiffs, or a word that is obsolete, totally unknown in the language or out of common usage, the Court can discern no relationship between the word 'situation' and the apparel or entertainment services that the plaintiffs provide."
Analyzing other factors including the similarity of "The Situation" to "Fitchuation," Sorrentino fares no better.
"The T-shirt expresses 'The Fitchuation' visually and phonetically different than 'The Situation,'" writes Judge O'Sullivan. "There is no evidence of A&F 'palming off' its T-shirt as that of the plaintiffs where, as here, the T-shirt has the A&F inside label and prominently uses A&F's own famous trademark 'Fitch' as part of the parody."
The judge also notes that Sorrentino didn't offer "Situation" apparel until A&F did so, that Sorrentino doesn't sell his products in retail stores and that the plaintiff hasn't produced any evidence of actual confusion among consumers. As for what A&F had in mind, it's noted that an intent to parody doesn't equal an intent to confuse the public.
The Florida court also determines that A&F had a fair use right to make fun of Sorrentino in a press release. In fact, this press release is determined not to be an advertisement.
"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" writes Judge O'Sullivan. "A&F's press release 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."
So much for reverse psychology in marketing. In analyzing Sorrentino's publicity rights claim, the judge won't even entertain the "hearsay" of news articles and Facebook comments that speculated the press release was a publicity stunt. And in looking at Sorrentino's false advertising claim, the judge says there isn't anything false about it.
Yes, Sorrentino could have accepted $10,000. As the judge notes, "A&F's offer of money for Sorrentino not to wear its brand is a statement of fact, but is undisputedly true."