Basketball superstar Michael Jordan will get a second bite at the apple in a case involving the use of his identity by a Chicago supermarket chain.
In 2009, Sports Illustrated published a special commemorative issue devoted to Jordan’s career, in recognition of his induction into the Basketball Hall of Fame.
Jewel Food Stores, Inc. was offered free advertising in the magazine in exchange for agreeing to sell it in its stores.
Jewel ran a full-page ad on the inside back cover of the magazine congratulating Jordan on his induction. The ad included a pair of “23” sneakers as well as Jewel’s trademarked logo and slogan.
Jordan sued, claiming that the ad (which used his well-known jersey number) was a misappropriation of his identity for Jewel’s commercial benefit. He brought claims under the federal Lanham Act (which governs trademark law) and also under the Illinois Right of Publicity Act.
Jordan sought $5 million in damages, plus punitive and treble damages under the Lanham Act.
Jewel claimed that its ad was a form of non-commercial speech entitled to First Amendment protection. A federal district court agreed, and Jordan appealed to the Seventh Circuit.
The parties agreed that if Jewel’s speech was non-commercial in the Constitutional sense, then the First Amendment would provide a defense to Jordan’s claims.
The Seventh Circuit noted that it did not necessarily agree with the parties on this point but that the commercial/non-commercial distinction was potentially dispositive:
If the ad is properly classified as commercial speech, then it may be regulated, normal liability rules apply (statutory and common law), and the battle moves to the merits of Jordan’s claims. If, on the other hand, the ad is fully protected expression, then Jordan agrees with Jewel that the First Amendment provides a complete defense and his claims cannot proceed. The district court held that the ad was fully protected noncommercial speech and entered judgment for Jewel.
The court reversed and remanded the case to the trial court for further proceedings. In doing so, the appellate court found that Jewel’s ad was in fact commercial speech:
Jewel’s ad … prominently features the “Jewel-Osco” logo and marketing slogan, which are creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message. Based on its content and context, the ad is properly classified as a form of image advertising aimed at promoting the Jewel-Osco brand. The ad is commercial speech and thus is subject to the laws Jordan invokes here.
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Photo Attribution: “Michael Jordan” by Diegoestefan97 is licensed under CC BY 3.0.