Abercrombie & Sitch: Who's Right and Who's Wrong?

They say that all publicity is good publicity, but a recent high-profile PR fight -- as well as a court case that erupted in its aftermath -- would seem to challenge that. It would seem to, but in fact it actually might prove the old maxim perfectly.

By now you probably know about the very clever, very public fight that's been going on between popular clothing retailer Abercrombie & Fitch and Mike "The Situation" Sorrentino of MTV's Jersey Shore. Just in case, here's a quick recap: In August of last year, A&F made headlines when it claimed openly that it didn't want to be associated with Sorrentino or any of his Jersey Shore castmates and actually offered to pay "Sitch" a tidy sum of money not to wear its clothes. Anybody with a functional brain could see what the company was doing and it was indeed a pretty brilliant plan -- highlight the negative publicity supposedly brought to Abercrombie & Fitch by Sorrentino and his fellow self-proclaimed Guido and Guidettes' antics by capitalizing on that publicity and in fact (fist?) pumping it up. It could even be argued that A&F created the very publicity it was supposedly decrying, given that nobody seemed to notice any damage being done to the good name of Abercrombie & Fitch since the retailer was regularly under fire for its suggestive ad campaigns and was in its own way as infamous as Jersey Shore. For a lot of people it didn't seem all that ridiculous to ask the obvious: "Wait, can The Situation really make Abercrombie & Fitch any more controversial than it already is?"

At first this whole thing might seem like an "everybody wins" scenario, with a clothing giant giving an underhanded-backhanded compliment to a reality TV star that helps to keep that star's name front and center in the eyes of the press while creating a buzz for itself based on the star's name and personality. But it's the latter part of that equation that got Abercrombie & Fitch into big trouble -- and got it outsmarted by a guy who's become a surprisingly shrewd businessman when it comes to carefully controlling and publicizing his image. Sorrentino may come off as a clueless hedonist on Jersey Shore, but more than almost anyone on the show he's managed to turn himself into a wildly successful brand -- and as far as he's concerned, it's not A&F's or anyone else's right to trade on that brand for its own profit. And that's why he quickly filed a $4 million lawsuit alleging trademark infringement and the violation of his publicity rights. Depositions took place in the case the past several weeks and the whole thing could be headed for trial just in time for A&F's "Back-To-School-Sale" season if some kind of settlement isn't reached.

What Sorrentino immediately noticed -- and really what anyone with access to Google could've figured out -- was that Abercrombie & Fitch had for some time around when it claimed to want itself distanced from the Jersey Shore crowd been selling T-shirts that sported trademarked Jersey Shore-style lingo. In other words, for a company that supposedly wanted nothing to do with The Situation it seemed more than willing to tie itself to him by appropriating, without authorization, catchphrases and other intellectual property related to his brand. It goes without saying that A&F's public smack-down of Sitch was a completely BS endeavor, given that the company issued a cease-and-desist order and a press release telling the world that a cease-and-desist had been issued at the same time; the goal, very likely, was always to capitalize on the immense popularity of Jersey Shore and to turn it into a revenue boon for Abercrombie & Fitch. But while it could easily be argued that the publicity was indeed beneficial for all parties, including Sorrentino himself, the fact remains that it wasn't A&F's prerogative to both traffic in and then capitalize on The Situation's image and trademark without his consent. To eventually turn around and claim to not want to in any way be associated that image wasn't just insulting, it was nonsense.

What's worse, Abercrombie & Fitch took to both traditional and social media -- TV, Facebook, Twitter, etc. -- to not only "attack" Sorrentino's trademarked persona but simultaneously and unilaterally "piggyback" on and exploit his fame to the company's financial advantage. Love The Situation or hate him, he has a right to his intellectual property -- and before you laugh at the word "intellectual" being associated with The Situation, remember that a lot of what you see in reality TV isn't exactly reality -- to use it as he sees fit and to defend it if necessary. That's what intellectual property and publicity rights law is all about -- and it's a specialty of mine.

It'll be interesting to see what happens over the next few weeks as this case reaches a kind of boiling point and, believe it or not, the ramifications could be far-reaching in the world of entertainment. Still, here we are talking about both Abercrombie & Fitch and The Situation -- so in the end maybe all this bad publicity really is good publicity. The old maxim holds true.