Was A&F’s demand that the cast of The Jersey Shore cast ditch its duds Deceptive?

Ah Schadenfreude– are you what makes viewers watch reality shows? Back in September, Abercrombie & Fitch “dissed” Michael “The Situation”  Sorentino in a press release issued offering a “substantial sum” if Sorentino stopped wearing A&F Duds, because “Mr. Sorentino’s association with our brand could cause significant damage to our image.”  This week Sorentino has come back swinging a complaint for tradmark infringement and false adveristing in US District Court for Southern Florida. Was A&F simpy disingenuous humor or down right deception?  Sorentino alleges that the press release’s use of his moniker “was not a part of a bona fide news report” but sought to exploit  “The Sitch’s” name, image and likeness for a multi milion dollar ad campaign.

Back in September, the icy blast from Abercrombie & Fitch’s “Brand Senses Department” appeared to damage A&F’s brand, short term. Although the company characterized the statement as a “win-win” for all involved, the Daily Mail reported that Abercrombie & Fitch experienced negative criticism about the statement from media and consumers based on the retailer’s own provocative marketing. A&F’s share price (AFN)took a nosedive in apparent reaction following the firestorm of media attention, falling nearly 10 percent as investors questioned the brand’s misread of its consumers.

But did the critics realize that A&F was selling t-shirts emblazoned with “The Fitchuation” and “GTL [You Know The Deal] FITCH” at the same time?? Both slogans clearly relate to Sorentino (he has pending trademark registrations for both “The Situation” and “GTL [You Know The Deal]”).  It seems obvious that A&F sought to create a false association between the retailer and the reality show star.

In September,  Scott Johnson asked me whether I thought A&F’s “Win-Win Statement” constitute reverse product placement?  Product placement or embedded marketing is the practice, well known to many, in which advertisers pay a sponsorship fee to producers to place their products in television programs and movies watched by the advertiser’s target audience. “Product displacement” is the practice by some advertisers to forbid use of an advertiser’s product in a program due to a feared negative association between the program and the product. “Reverse Product Placement” is referred to by some when fictional products created in television programs or motion pictures are actually brought to market. IMHO, A&F’s press release might constitute “implied product placement” in which the big clothing brand issued a public “denouncement” to ensure everyone knows the controversial cast prefers A&F apparel.  Silly yes, but deceptive?

In past practice, the placement of a product in a program was not explicitly disclosed to viewers. However, with the current concern that some television viewers like children and elderly are not able to accurately identify commercial messages, consumer protection advocates press advertisers and producers to identify product placements embedded in media. The FTC’s revised Endorsement and Testimonial Guides require that any “‘material connection’ (sometimes payments or free products) between advertisers and endorsers connections that consumers would not expect must be disclosed.”

Was there a material connection?  Abercrombie and Fitch had a sweet deal. “The Situation” and his fellow cast members wear A&F clothing by choice – and in doing so generate voluntary and free product placement that A&F was not even required to disclose since it was not paying to place product in the Jersey Shore program.

It’s difficult to discern exactly what were Abercrombie and Fitch’s intentions behind the “Win-Win Statement.” But, in answer to Scott’s question, I, like many, suspect the intention behind the statement was more duplicitous than reverse placement. If A&F really wanted their product off the backs of Jersey Shore cast members they would not have issued a public statement but would have used back channels. The firestorm its public statement produced is the opposite of what a truly cautious brand would want. Rather than sitting back and quietly collecting increased sales revenue from free advertising of its clothing by Jersey Shore cast members, A&F created a hornet’s nest of press and social media buzz by offering to pay the The Situation to stop wearing its clothing. That buzz immediately associated the popular show with the A&F brand in every household, newsfeed and inbox that didn’t watch the show. Readers of A&F’s statement complained that its own marketing campaigns are so tawdry that it is hypocritical to protest the so-called ‘skanky’ association with Jersey Shore’s cast. That may be an average consumer’s take on A&F’s statement and this attitude punished A&F’s brand and stock in the short term. However, influencers and social media-istas love snarky outrageous behavior (Charlie Sheen = Fierce?) and may, in the long term, push the brand further. For example, some will add A&F clothing to their back-to-school wardrobe as humorous accessories and talk about it online which will build more brand awareness. If that happens, A&F’s statement looks more like a bold marketing move than an unfortunate misstep..

So that leaves me, from a legal point of view, asking whether it is deceptive for A&F to omit disclosure of an informal but cozy relationship with MTV if the communication was not a genuine attempt to stop perceived misuse of its brand, but rather was a calculating effort to cash in on the skank factor of Jersey Shore? If a consumer purchases an A&F hoodie out of rebellious love of The Situation, was she deceived? Was she harmed?

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