Mps Entm't v. Abercrombie & Fitch Stores

A press release is not an advertisement as a matter of law in a trademark infringement case.

Opinion (O'Sullivan): MPS Entertainment, LLC, ("MPS") is a New Jersey Limited Liability Company partially owned by Michael P. Sorrentino "The Situation" from the MTV show "Jersey Shore." Abercrombie & Fitch Stores, Inc. ("A&F"), produces, markets and sells clothing at retail stores. In February, 2010, A&F made and sold a t-shirt in its stores that bore the phrase "The Fitchuation" on the front. MPS claims that A&F infringed on their trademark "The Situation" by using the mark on their t-shirt and in their advertising campaign. To establish a trademark infringement claim under the Lanham Act or the common law, "a plaintiff must show (1) that the plaintiff had enforceable trademark rights in the mark or name, and (2) that the defendant made unauthorized use of it 'such that consumers were likely to confuse the two.'" A&F filed a motion for summary judgment. The Court found that a press release is not an advertisement as a matter of law, and does not create a genuine issue of material fact to defeat summary judgment. The Court also reviewed seven factors of the strength of similarity between the two trademarks "The Fitchuation" and "The Situation", finding the two to be dissimilar. As such, A&F's motion for summary judgment was GRANTED.