In September, 2009, Michael Jordan, the basketball great, was inducted into the Basketball Hall of Fame in USA. Soon afterward Sports Illustrated produced a special edition to celebrate his career. They offered a Chicago area grocery store chain known as Jewel-Osco free advertising in return for a promise to stock and sell the magazines in their stores. The store operator and defendant, Jewel Food Stores, agreed to the deal and its marketing department prepared a full page colour ad (as shown at the bottom of this article), which was placed on the inside back cover of this commemorative issue.
Soon after the issue hit the newsstands, Jordan filed a lawsuit against Jewel in Illinois courts, claiming among other things infringement of his publicity and trade-mark rights.
Jewel applied to have the case thrown out, on the basis that the advertisement consisted of “non-commercial speech”, and therefore under US constitutional law was entitled to free speech protection. The lower court agreed with Jewel, but Jordan appealed and was successful.
The US Court of Appeals (Seventh Circuit) ruling clearly indicates that an advertisement does not need to suggest that the reader buy a specific product or service to constitute commercial speech (such commercial speech is subject to a lesser level of free speech protection). The Court provided the following nuggets:
“The commercial-speech category is not limited to speech that directly or indirectly proposes a commercial transaction.
Without the rose-coloured glasses, Jewel’s ad had an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers. The commercial message is implicit but easily inferred, and is the dominant one.
There is a world of difference between an ad congratulating a local community group and an ad congratulating a famous athlete. Both ads will generate goodwill for the advertiser. But an ad congratulating a famous athlete can only be understood as a promotional device for the advertiser. Unlike a community group, the athlete needs no gratuitous promotion and his identity has commercial value. Jewel’s ad cannot be construed as a benevolent act of good corporate citizenship.
The ad is plainly aimed at fostering goodwill for the Jewel brand among the targeted consumer group – “fellow Chicagoans” and fans of Michael Jordan – for the purpose of increasing patronage at Jewel-Osco stores.
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.
A contrary holding would have sweeping and troublesome implications for athletes, actors, celebrities, and other trade-mark holders seeking to protect the use of their identities or marks.
Therefore Jordan’s case will now go forward, subject to further appeals. The message for all advertisers is not to get careless by assuming that a mere congratulatory ad of a celebrity can proceed without permission.
Text of the ad below:
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! Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was “just around the corner” for so many years.
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