Michael Jordan Wins in 7th Circuit Case over Supermarket Ad

On February 19, the U.S. Court of Appeals for the Seventh Circuit reversed and remanded a lower court’s dismissal of a claim brought by Michael Jordan against Jewel Food Stores.  Jordan’s lawsuit alleged that the grocery store misappropriated his identity for the store’s commercial benefit by running an ad in Sports Illustrated that congratulated the ex-player on his 2009 induction into the Basketball Hall of Fame.  Though the ad didn’t feature Jordan himself, it prominently displayed a pair of red and white gym shoes featuring the number 23 and a congratulatory message bracketing the Jewel-Osco supermarket logo.  Jordan’s complaint alleged that the advertisement violated the Illinois Right of Publicity Act, the Illinois Consumer Fraud and Deceptive Business Practices Act, and the Lanham Act, and sought $5 million in damages over the ad.

The District Court initially sided with Jewel and dismissed Jordan’s claim, asserting that because the supermarket’s ad wasn’t selling anything in particular, the ad wasn’t commercial in nature and was therefore protected speech under the First Amendment.  The Circuit Court disagreed; it believed that Jewel was wrongfully using Jordan’s image to promote the store’s brand.  The opinion noted, “[t]he ad’s commercial nature is readily apparent . . . .  It maybe generic and implicit, but it is nonetheless clear.  The ad is 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.”  It went on to caution that “[c]lassifying this kind of advertising as constitutionally immune non-commercial speech would permit advertisers to misappropriate the identity of athletes and other celebrities with impunity.”

Jordan’s lawyers insisted that the lawsuit was a necessary step to protect the value of the star’s identity, noting that Jordan typically received $5 million for his endorsement or marketing deals.  Frederick J. Sperling, one of Jordan’s attorneys, expressed his satisfaction with the ruling, stating, “[w]e’re very pleased that the Court of Appeals ruled that Jewel’s ad misrepresented Michael Jordan’s identity is commercial speech.”

A copy of the court’s decision is available here

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