Finnegan's monthly review of essential decisions, key developments, evolving trends in trademark law, and more.
August/September 2011 Issue


®eviewing the Situation

You are a national retailer hawking prep-style clothes to affluent American teens.  Your principal marketing tactic is to hire idyllic bronzed Adonises and Venuses to model your pants, tops, and underwear in various stages of undress.

So when you discover that your clothing is being worn by one of the featured performers on a television program watched avidly, if not worshipfully, by your target demographic, what do you do?  Rejoice? Celebrate?  Fire up the marketing engine?

Well, if you are retail giant Abercrombie & Fitch, and if the celebrity in question is Mike Sorrentino from MTV’s Jersey Shore, you’ve got quite a “Situation” on your hands.

For those readers who have been living in pop-culture Siberia for the past three years, the television show Jersey Shore chronicles the exploits of a collection of Italian-American young adults let loose in a group home on the New Jersey beach town of Seaside Heights.  Although most hail from outside the Garden State, they have been dispatched to go “Down the Shore” (the uniquely Joisey way of going to the beach).  Describing themselves bluntly as “Guidos” and “Guidettes,” the cast members busy themselves with the daily rituals of Gym, Tanning, and Laundry (or “GTL” in Jersey Shore parlance). They’re like modern-day residents of some distorted, bizarre monastic order, following the same arc of daily activities, usually culminating in late-night excursions to some bling-laden club, where the Shorers mingle, flirt, and stalk the ultimate prize—someone to drag back for a session in the hot tub, and perhaps more.  The male ringleader of this hedonistic beach haven, Mr. Sorrentino, delights in pulling up his shirt, pointing to his impressive washboard abs, and ostentatiously proclaiming, “We’ve got a situation here!”


No sooner than you can say “The Rock,” “The Donald,” or “The Governator,” Mr. Sorrentino became known simply as “The Situation,” a guy notorious for loutish behavior, and certainly not someone who’d ever be confused for the host of CNN’s “The Situation Room,” Wolf Blitzer.


And for five seasons that saw the Shorers go from escapades on the Seaside boardwalk to South Beach and now to Florence, Italy, “The Situation” exploited his callow image for fame and fortune.  (Well, maybe infamy.  But in the age of Paris Hiltonesque quasi celebrity, the line between fame and infamy has arguably been extinguished.  It makes folks of a certain age nostalgic for the days when D-List celebrities with no discernable claim to fame, like Orson Bean or Arlene Francis, stuck to game-show panels and kept their noses clean.)

This season, “The Situation” can be seen barreling through the narrow streets of Florence sporting Abercrombie logo wear.  For any number of reasons, the folks at the retailer were less than impressed by this PDA (public display of Abercrombie!).  So they did what any concerned trademark owner would do—they called their lawyers.

Now certain legal circles in the IP world are notorious for offers to pay potential infringers to stay off the market.  Such so called “reverse payments” were once endemic in pharmaceutical patent litigation, that is, until the FTC perked up its regulatory ears and began to crack down.  But offering to pay a celebrity not to sport your brand?  That’s precisely what Abercrombie opted to do.  Instead of a classic cease-and-desist letter complaining of “product placement without pay,” Abercrombie sent the Jersey Shore team this missive:

We are deeply concerned that Mr. Sorrentino’s association with our brand could cause significant damage to our image.  We understand that the show is for entertainment purposes, but believe this association is contrary to the aspirational nature of our brand, and may be distressing to many of our fans.  We have therefore offered a substantial payment to Michael “The Situation” Sorrentino and the producers of MTV’s The Jersey Shore to have the character wear an alternate brand.  We have also extended this offer to other members of the cast, and are urgently waiting a response.

Remaining true to his iconoclastic nature, “The Situation” has remained tightlipped, and no word has emerged from him or MTV in response to Abercrombie’s angst.  Abercrombie, likewise, remains mum about the size of the “substantial payment” it has dangled in front of Mr. Sorrentino and the rest of the Jersey Shore cast.  But one thing seems clear.  In our pseudocelebrity culture, where free publicity is the currency of the realm, everybody involved in this “situation” smells like a winner.