Abercrombie & Fitch beat the rap.
It made fun of Jersey Shore star Michael “The Situation” Sorrentino by selling shirts that used the phrase “The Fitchuation.”
Sorrentino and his company, MPS Entertainment, sued Abercrombie for trademark infringement. Abercrombie responded that its t-shirts were not likely to cause confusion with MPS’ alleged trademark because they constituted parody.
Legally, a parody must simultaneously do two things: it must conjure up the original; and it must communicate that it is not the original. If it succeeds in doing both, it will avoid a likelihood of consumer confusion.
The U.S. District Court for the Southern District of Florida found Abercrombie met this test. It wrote: ”The undersigned agrees that A&F’s ‘The Fitchuation’ t-shirt constitutes a parody that is a play on words of a public figure — Sorrentino’s nickname, ‘The Situation,’ and ‘Fitch’… The shirt contains the defendants’ mark, ‘Fitch’ and bears the A&F brand label.” These facts, the court found, pointed against a likelihood of confusion.
The court similarly found Abercrombie wasn’t trying to profit from consumer confusion. “The target of A&F’s parody is ‘The Situation.’ The t-shirt expresses ‘The Fitchuation’ visually and phonetically different than ‘The Situation.’ 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.”
Given these findings, it’s not surprising the court granted Abercrombie’s motion for summary judgment dismissing the plaintiffs’ claim for trademark infringement.
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