Was Abercrombie Trading on the Situation’s Brand?

Mike “The Situation” Sorrentino sued Abercrombie and Fitch (“A&F”) yesterday (MPS Entertainment LLC et al v. Abercrombie & Fitch Stores Inc., case number 1:11-cv-24110, (S.D. Fla.), claiming that A&F’s  recent marketing campaign traded on his “enormous popularity.” The Situation is one of the stars of the MTV reality show “Jersey Shore,” who according to Snookie, has already blown the money he’s made from the show).  A few months ago, A&F claimed that they made The Situation an offer of a substantial amount of money to stop wearing A&F clothes on the show because it harmed its “aspirational” brand. A&F then sold shirts emblazened with slogans like, “The Fitchuation” and “GTL, You Know the Deal.” According to Sorrentino, A&F never made any such offer to him and the whole thing was a publicity stunt to get thousands of articles written about the chain and create interest in A&F’s “situation” clothing. Does he have a point? I think he does. While A&F will undoubtedly claim that it was not making trademark use of the Situation’s name or catch phrases, that their shirts were “merely ornamental” i.e., the material on the front of the shirt was not supposed to be a source identifier but instead was just “for looks,” I think when you look at the facts as a whole, A&Fwas very cleverly trading on his name. Is that actionable or compensable? We’ll have to wait and see if the self-proclaimed “guido” gets his due.

Thoughts?

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