When a Chicago grocer sought to elbow into a Michael Jordan moment and score points for itself, the basketball superstar showed that he could throw down in a court of law as well as on the hard wood, getting an appellate court to help him wipe the glass for reconsideration of what MJ asserted was a violation of his publicity and trademark rights.
The U.S. Court of Appeals for the Seventh Circuit recently reversed a lower court and ordered it to reconsider Jordan’s right of publicity and Lanham Act claims against Jewel Food Stores, a Chicago grocer that had used its logo in an advertisement in Sports Illustrated congratulating Jordan on his achievements when he was inducted into basketball’s Hall of Fame. Jewel had a deal with Time Inc., in which the food retailer got free advertising in exchange for giving prominent display in its stores to a special issue of Sports Illustrated honoring Jordan. In the ad that Jewel created for the issue, the grocer’s logo was displayed prominently above a picture MJ’s signature sneakers, along with text congratulating Jordan.
The superstar athlete, NBA franchise owner and noted businessman and hyper-competitor sued Jewel Food Stores under the Lanham Act, claiming the ad misappropriated his identity for the grocer’s commercial benefit and said it was likely to cause consumer confusion. He further claimed the ad violated his common law right of publicity, as well as the Illinois Right of Publicity Act.
Jewel said the ad furthered its free speech — a claim accepted by a federal district court but reversed and remanded by the appellate judges, who found the piece’s dominant function was to promote Jewel Food stores. The appellate judges relied on the U.S. Supreme Court’s decision in Bolger v. Youngs Drug Prods Corp., which discusses how courts can determine whether speech is an advertisement, refers to a specific product, and has an economic motivation.
And by the way, for all the MJ fans: