MARCH 2014
ADVERTISING, MARKETING
& PROMOTIONS
>> ALERT
MICHAEL JORDAN SCORES ON APPEAL
IN LAWSUIT OVER CONGRATULATORY AD
While one might think that congratulating an athlete on winning an award would not provoke a lawsuit,
a recent case serves as an important reminder that congratulatory advertisements using the name or
likeness of a famous person may pose significant risk. Recently, the United States Court of Appeals for the
Seventh Circuit held that a right-of-publicity and false association lawsuit filed by Michael Jordan against
a supermarket chain that published an ad congratulating him on his induction into the Basketball Hall of
Fame should be permitted to go forward.
BACKGROUND
To honor Jordan’s induction into the
Basketball Hall of Fame in September
2009, Time, Inc., the publisher of
Sports Illustrated, produced a special
commemorative issue devoted
exclusively to Jordan’s career. Jewel
Food Stores, Inc., the operator of
175 Jewel-Osco supermarkets in and
around Chicago, submitted a full-page
ad congratulating Jordan that ran on
the inside back cover of the issue. The
ad combined textual, photographic
and graphic elements, and prominently
included the Jewel-Osco logo and
marketing tagline, “Good things are
just around the corner.” The logo and
tagline, both registered trademarks,
were positioned in the middle of the
page above a photograph of a pair
of basketball shoes bearing Jordan’s
number “23.” The text of the ad read:
A Shoe In!
After six NBA championships, scores
of rewritten record books and
numerous buzzer beaters, Michael
Jordan’s elevation in the Basketball
Hall of Fame was never in doubt!
Attorney Advertising
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THE BOTTOM LINE
The Court’s decision serves as a cautionary reminder that advertisers should be
careful about running congratulatory advertisements featuring famous individuals that
also promote their own brand or products. Prior to running congratulatory ads,
advertisers and agencies should consult with legal counsel to avoid potential risks
and ensure compliance with all relevant laws.
Jewel-Osco salutes #23 on his many
accomplishments as we honor a fellow
Chicagoan who was “just around the
corner” for so many years.
Jordan was not amused by the ad and
sued Jewel for over 5 million dollars,
alleging violations of the federal
Lanham Act, the Illinois Right of
Publicity Act, the Illinois deceptive
practices statute, and common law
unfair competition.
Jewel denied liability claiming that the
ad was “non-commercial speech” and
was entitled to First Amendment
protection. The District Court sided
with Jewel and Jordan appealed.
THE SEVENTH CIRCUIT’S DECISION
The Seventh Circuit reversed. In so
doing, the Court set forth three factors
for determining whether speech
containing both “commercial” and
“noncommercial” elements should be
considered “commercial speech.”
Interpreting U.S. Supreme Court
cases, this framework requires an
analysis of whether:
1) the speech was an advertisement;
2) the speech referred to a specific
product; and
3) the speaker had an economic
motivation for the speech.
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MARCH 2014
ADVERTISING, MARKETING & PROMOTIONS
>> ALERT
The Seventh Circuit emphasized that
these factors provide “just a general
framework” for determining whether
speech is commercial and that no one
factor is dispositive.
Reviewing Jewel’s ad within these
guidelines, the Seventh Circuit found
that the ad had an “unmistakable
commercial function: enhancing the
Jewel-Osco brand in the minds of
consumers.” The Court declared that
the ad was a form of image advertising
“aimed at promoting goodwill for the
Jewel-Osco brand by exploiting public
affection for Jordan at an auspicious
moment in his career,” and it thus fell
within the framework’s first factor. The
Seventh Circuit easily disposed of the
second and third factors. It decided
that although no specific product or
service was offered, the ad promoted
patronage at Jewel-Osco stores
generally. It also found that there was
“no question” that the ad served an
economic purpose: “to burnish the
Jewel-Osco brand name and enhance
consumer goodwill.” Accordingly, the
Seventh Circuit held that the ad was
commercial speech, and it remanded
the case to the District Court for further
findings on the merits of Jordan’s
claims.
FOR MORE INFORMATION
Sara L. Edelman
Partner
212.468.4897
sedelman@dglaw.com
Brooke Erdos Singer
Partner
212.468.4940
bsinger@dglaw.com
or the D&G attorney with whom you
have regular contact.
Davis & Gilbert LLP
T: 212.468.4800
1740 Broadway, New York, NY 10019
www.dglaw.com
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