Antitrust Law Daily Wrap Up, ADVERTISING—S.D. Fla.: Abercrombie not liable for press release using Jersey Shore star’s name and nickname, (Jul 1, 2013)

By Jody Coultas, J.D.

Abercrombie & Fitch Stores, Inc. (A&F) was not liable for a press release stating that it had offered a reality show participant money to not wear its products on television, the federal district court in Miami has held (MPS Entertainment, LLC. v. Abercrombie & Fitch Stores, Inc., June 28, 2013, O’Sullivan, J.).

Michael Sorrentino, who appeared on the television show “Jersey Shore” using the nicknames “The Situation” and “Mike The Situation,” owns MPS Entertainment, LLC. A&F sold a shirt bearing the phrase “The Fitchuation” on the front. MPS alleged that A&F infringed on its trademark of “The Situation” by using the mark on its t-shirt, and engaged in a false and deceptive publicity campaign. A&F issued a press release stating that it offered Sorrentino compensation to cease wearing A&F products.

A&F was entitled to judgment as a matter of law on MPS’s Lanham Act false advertising claims, according to the court. MPS alleged that A&F wrongly used Sorrentino’s name, image, and likeness for advertising purposes. To state a claim, MPS needed to demonstrate that the commercial advertisement or promotion was either literally false, or likely to mislead and confuse. MPS based its claims on statements that could not be shown to be true or false. There was also no evidence of consumer deception.

MPS was unable to state a Florida misleading advertising claim, according to the court. To state a Florida’s misleading advertising statute, MPS needed to show reliance on the alleged misleading advertising, as well as the elements of the common law fraud. MPS did not address the claim and did not prove any false statement or reliance on A&F’s press release.

A&F was also entitled to summary judgment on the trademark claims based on the purported advertising campaign and press release, according to the court. MPS alleged that the press release constituted a deceptive publicity campaign that allowed the A&F to profit off of the use of a false affiliation with Sorrentino and that A&F wrongly used Sorrentino’s name, image, and likeness for advertising purposes. The use of a trademark for purposes of expression, criticism, commentary, or satire is generally protected as a matter of law unless it explicitly misleads as to source or sponsorship. The use of Sorrentino’s name and nickname in the press release was a non-actionable fair use under trademark law. A&F did not do anything that would suggest Sorrentino’s sponsorship or endorsement. The press release expressly disassociated Sorrentino from A&F, and there was no suggestion of sponsorship or endorsement by Sorrentino. The press release was also not advertising.

The case is No. 11-24110-CIV-O’SULLIVAN.

Attorneys: Darren Adam Heitner (Wolfe Law Miami, P.A.) for MPS Entertainment, LLC. Gerald J. Houlihan (Houlihan & Partners PA) for Abercrombie & Fitch Stores, Inc.

Companies: MPS Entertainment, LLC; Abercrombie & Fitch Stores, Inc.

Cases: Advertising FloridaNews