Jersey Shore star Mike 'The Situation' Sorrentino recently lost his lawsuit against Abercrombie & Fitch (A&F). A Florida federal judge ruled that the case could not proceed to trial based on his trademark infringement, publicity rights and false advertising claims related to a t-shirt sold by the retail store labelled 'The Fitchuation'.

Sorrentino gave himself the nickname on the popular MTV reality show when he frequently referred to his chiselled abs as 'The Situation'. In August 2011 A&F issued a press release 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 favour of A&F, Judge O'Sullivan noted that the press release "explicitly attempted to disassociate the plaintiff's name from the brand" by offering Sorrentino "substantial payment" not to wear its clothing on the show.

Although A&F claimed that it wanted to disassociate itself from the Jersey Shore star, it began selling 'The Fitchuation' t-shirts in 2010, and Sorrentino brought suit in 2011 seeking more than $4 million in damages. A&F argued that 'The Fitchuation' t-shirt was merely a play on words or a parody between the words 'Fitch' and 'Situation', and could not establish likelihood of confusion under well-established 11th Circuit law. O'Sullivan agreed and found that Sorrentino had failed to meet his burden to present a triable issue of fact as to whether the shirt was likely to confuse consumers. O'Sullivan further noted that 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, 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 that the bottom of the release contained boilerplate language that "cannot be construed to directly promote a good or service".

For further information on this topic please contact Stacy K Marcus or Sulina D Gabale at Reed Smith LLP by telephone (+1 212 521 5400), fax (+1 212 521 5450) or email (smarcus@reedsmith.com or sgabale@reedsmith.com).

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