As the San Antonio Spurs and Manny Pacquiao could well advise basketball legend Michael Jordan, even champions don’t win every contest. Jordan himself discovered this off the hard courts and in a court of law recently, when a federal judge in Chicago, dealing with matters from a case remanded to him by the U.S. Court of Appeals for the Seventh Circuit, rejected the superstar’s motion for summary judgment in a lawsuit over a grocery ad that seemed to salute him.
Jordan’s case against Jewel Food Stores in Chicago isn’t as complicated, say, as basketball coach Phil Jackson’s famed triangle offense. It is worth diagramming a little history in the dispute, which began when Jewel took out a full-page ad in Sports Illustrated congratulating Jordan on his 2009 induction into basketball’s Hall of Fame. The magazine swapped with Jewel the ad space for display space in its stores for the special commemorative edition about Jordan.
But Jordan sued Jewel for misappropriating his identity, claiming violations of the federal Lanham trademark act and the Illinois Right of Publicity Act. Jewel got the case moved to federal jurisdiction, citing the trademark issue, and the grocer won when U.S. District Judge Gary Feinerman decided the magazine ad was a protected First Amendment exercise.
When Jordan appealed, the higher court overruled and found the ad was commercial speech designed to enhance Jewel’s brand. This meant that Jewel had no constitutional protection against Jordan’s claims and the appellate judges remanded the case to the district judge to sort the matters out, especially with a trial.
In the latest case action, Jordan had sought summary judgment under the state publicity rights act. To prevail, he needed to show his likeness or name had been misappropriated, without his consent and for another’s commercial benefit. Jewel stipulated to the first two elements but denied commercial gain in the ad — a fascinating position considering that the appellate ruling stated, “there is no question that the ad serves an economic purpose: to burnish the Jewel-Osco brand name and enhance consumer goodwill.”
Feinerman ruled that Jordan relied excessively on that appellate court decision and he and his attorneys had failed to deal with potential violations of the Illinois act. So he said the case could advance, with a trial set for December.
Who stays, who’s out
The judge retained jurisdiction over the case and allowed Jordan to bring in as a defendant Jewel’s parent company, Supervalu Inc. He rejected Jewel’s attempt to pull others into the case, specifically Sports Illustrated’s parent, Time Inc., and Vertis Inc., the ad’s designer and, the judge wrote, now a bankrupt firm. Time, the judge said, may pursue third-party cross-claims it has filed against Jewel.
Jordan earlier won on summary judgment his claim against another grocer that had placed another tribute ad to him in the SI commemorative. That grocer, Dominick’s, conceded violations of the Illinois publicity act and its ad was clearer in its commercial exploitation because, the judge noted, it featured the grocer’s steak and a two-buck discount coupon.