Posted Feb 21, 2014 01:24 pm CST
A grocery chain’s ad congratulating former Chicago Bulls star Michael Jordan on his induction into the Basketball Hall of Fame is commercial speech subject to reduced First Amendment protection, a federal appeals court has ruled.
The decision by the Chicago-based 7th U.S. Circuit Court of Appeals reverses a trial judge’s decision that the ad was noncommercial speech with full First Amendment protection, report the Chicago Tribune and the Chicago Sun-Times. The case now returns to the lower court.
The ad by grocery chain Jewel-Osco was entitled “A Shoe In!” and pictured a pair of basketball shoes with the number 23 on them. “Michael Jordan’s elevation to the Basketball Hall of Fame was never in doubt!” the ad read. “Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was ‘just around the corner’ for so many years.” The ad also had Jewel’s logo and slogan, “Good things are just around the corner.”
Jordan responded with a $5 million suit alleging violations of his trademarks and publicity rights. “To Jordan,” the opinion says, “the ad was not a welcome celebratory gesture but a misappropriation of his identity for the supermarket chain’s commercial benefit.”
“Considered in context, and without the rose-colored glasses,” the opinion said, “Jewel’s ad had an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers.”
A contrary ruling, the appeals court said, “would have sweeping and troublesome implications for athletes, actors, celebrities and other trademark holders seeking to protect the use of their identities or marks.”
Jordan has also sued supermarket chain Dominick’s for a similar congratulatory ad. A federal judge found liability, and a damages trial is pending, the Tribune says.
Jordan’s lawyers have said that any recovery, less attorney fees, will be donated to charity.
Hat tip to How Appealing.