MPS Entm't., LLC v. Abercrombie & Fitch Stores, Inc.
| Decision Date | 28 June 2013 |
| Docket Number | CASE NO. 11-24110-CIV-O'SULLIVAN |
| Parties | MPS ENTERTAINMENT, LLC and MICHAEL P. SORRENTINO, Plaintiffs, v. ABERCROMBIE & FITCH STORES, INC. and ABERCROMBIE & FITCH CO., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
[CONSENT]
THIS CAUSE is before the Court on the Defendants' Motion for Summary Judgment ("Motion," DE# 93, 11/1/12), which contains the defendants' Statement of Undisputed Facts ("SUMF"). The plaintiffs filed their response ("Response," DE# 100, 11/20/12), to which the defendants filed their reply (DE# 109, 11/20/12). Additionally, the plaintiffs filed Plaintiffs' Response to Defendants' Statement of Undisputed Material Facts (DE# 99, 11/20/13). Having reviewed the Motion, Response, Reply, the SUMF and the plaintiffs' response thereto, and the record, the Court grants the Defendants' Motion for Summary Judgment ("Motion," DE# 93, 11/1/12) as more fully discussed below.
This case involves trademark infringement and related claims by a public figure alleging that a clothing company used his nickname and trademark on a t-shirt and in an advertisement to sell its products. The plaintiff, Michael Sorrentino, regularly appeared on the television show "Jersey Shore," which first aired on MTV Networks2 on December 3, 2009. Sorrentino and his brother Marc Sorrentino own the plaintiff MPS Entertainment, LLC, which is a limited liability company engaged in the business of developing, marketing, and distributing goods and services. The defendant, Abercrombie & Fitch Co., is the parent company of Defendant Abercrombie & Fitch Stores, Inc. (collectively, "A&F"), and A&F produces, markets, distributes, and sells clothing at retail stores. Plaintiffs' claims relate to a t-shirt created and sold by A&F that had the phrase "The Fitchuation" on the front of the shirt and to a press release issued by A&F, which the plaintiffs contend constituted an advertisement for A&F's products.
The plaintiff Michael Sorrentino uses the nicknames "The Situation" and "Mike The Situation." Sorrentino gave himself the nickname "The Situation" based on an association with his abdominal muscles.
On January 28, 2010, A&F placed an order for a t-shirt bearing the phrase "TheFitchuation" on the front of the shirt. A&F explains that 3 (Statement of Undisputed Facts, D.E. 93, ¶ 4.)
A&F began selling the t-shirt in February 2010 exclusively through its Abercrombie & Fitch branded stores and website. A&F does not engage in any conventional advertising, and it did not advertise "The Fitchuation" t-shirt. All but four of the shirt sales were made by December 2010, and the remaining four shirt sales were made by June 2011.
On October 19, 2010, the plaintiffs filed an application to register "The Situation" as a trademark covering entertainment services. The plaintiff MPS currently sells t-shirts on its website, http://www.officialsituation.com. One t-shirt sold by the plaintiff MPS is called the "Official Situation Logo T-shirt," which contains the words "The Situation" and "Official Situation Nation." (See Motion Ex. 42, D.E. 93-6, at CM/ECF p. 21.) The plaintiffs have never used the phrase "The Fitchuation."
On the episode of Jersey Shore airing on August 11, 2011, Sorrentino wore at least one pair of A&F-branded sweatpants.4 Four days later, on August 15, 2011,5 A&F sent a letter via overnight Federal Express to MTV Networks, in which A&F stated that it wouldbe willing to pay MTV, Sorrentino, or other characters on the show up to $10,000 not to wear any clothing bearing trademarks owned by A&F. The body of the letter stated, in relevant part, as follows:
MTV Networks received the letter the next morning, on August 16, 2011, at 9:01 a.m.6
Later that same day, on August 16, 2011 at 6:13 p.m., A&F issued a press release referring to Sorrentino.7 The press release stated as follows:
(Motion Ex. 20, DE# 93-4, at CM/ECF p. 23; Reid Wilson Decl., Ex. C, DE# 93-8, at CM/ECF p. 17.) The italicized paragraph in the press release is "standard boilerplate that goes at the end of every press release" issued by A&F. (Statement of Undisputed Facts, D.E. 93, ¶ 24.) The press release did not contain any video, photographs, or images ofSorrentino.
On June 15, 2012, Plaintiffs filed their Second Amended Complaint ("Complaint," DE# 68), wherein they raised the following six claims against both of the defendants: (1) trademark infringement under common law; (2) unfair competition and false designation of origin in violation of 15 U.S.C. § 1125(a)8 ; (3) false advertising in violation of 15 U.S.C. § 1125(a); (4) unfair competition under Florida Statute Section 495.151; (5) common law injury to business reputation; and (6) misappropriation of likeness for commercial purposes in violation of Florida Statute Section 540.08. (See Compl. ¶¶ 34-70, 77-84.) In addition, the plaintiffs raised the following three claims against the defendant Abercrombie & Fitch Co.: (1) deceptive, false, and misleading advertising in violation of Florida Statute Section 495.151; (2) illegal use of name in commerce under the common law; and (3) deceptive, false, and misleading advertising in violation of Florida Statute Section 817.41. 9
On November 1, 2012, the defendants moved for summary judgment on all claims.The defendants argue that "[a]s for Plaintiffs' trademark infringement claims, the August 15, 2011 press release, in criticizing Plaintiff Michael 'The Situation' Sorrentino as contrary to A&F's brand image, could not possibly have created a likelihood of confusion that the press release was nevertheless issued or approved by Sorrentino." (Motion for Summary Judgment p. 1, DE# 93, 11/2/12) The defendants also argue that the "Fitchuation" t-shirt was a "play on words or parody between the words 'Fitch' and 'Situation'" and "cannot establish likelihood of confusion under well-established Eleventh Circuit law." (Id.) The defendants further argue that the plaintiffs "do not have a 'right of publicity' claim" because "the press release does not directly promote a product or service" and it "explicitly attempted to disassociate his name from A&F's brand." (Id.) In their Response, the plaintiffs argue that "there are genuine issues of material fact" on all claims that preclude summary judgment for the defendants. (Response p. 1, DE# 100, 11/20/12)
On a motion for summary judgment, the Court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The Supreme Court has explained the summary judgment standard as follows:
[T]he plain language of [Rule 56] mandates the entry of...
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