On February 19, 2014, the 7th Circuit held that Jewel Foods Store, Inc.’s use of Michael Jordan’s name and number in a congratulatory ad that also included Jewel’s name, logo and “motto” constituted commercial speech. In 2009, Jewel paid for an advertisement in a commemorative issue of Sports Illustrated that congratulated Jordan on his induction into the Basketball Hall of Fame: “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’ [the Jewel motto] for so many years.” The ad also included an image of a pair of Nike Air Jordan basketball shoes with the number 23 on the tongues of the shoes and the Jewel-Osco logo, but did not mention any Jewel products or services. Soon after the magazine was released, Jordan filed a lawsuit against Jewel, alleging, among other things, violation of his right of publicity. The District Court dismissed the case, holding that the advertisement was noncommercial speech because it did not invite readers to buy a particular Jewel product or service and as such, was protected by the First Amendment. However, in a decision expected by many, the 7th Circuit reversed the lower court and held that the advertisement was commercial speech, noting that “[t]he ad implicitly encourages readers to patronize their local Jewel-Osco store. That it doesn’t mention a specific product means only that this is a different genre of advertising. It promotes brand loyalty rather than a specific product, but that doesn’t mean it’s ‘noncommercial.’”
Tip: Advertisers should be cautious about naming or referencing celebrities in advertising without permission. An ad that includes the advertiser’s name or trademark (even in the absence of a reference to a specific product or service) is likely to be deemed commercial speech, which could give rise to a claim for violation of the person’s right of publicity.