Jewel-Osco’s Ad Congratulating Michael Jordan Declared Commercial Speech

The Seventh Circuit, in Jordan v. Jewel Food Stores, Inc., 12-1992, 2014 WL 627603 (7th Cir. Feb. 19, 2014), reversed a federal district court ruling and held that an advertisement run by Jewel-Osco supermarkets (“Jewel”) congratulating Michael Jordan on his 2009 induction into the Hall of Fame constituted image advertising—a form of “commercial speech.”  This decision defeated Jewel’s First Amendment defense and permitted Jordan’s case against the supermarket chain to proceed under Illinois publicity law.

Background:

When Jordan was inducted into the Naismith Memorial Basketball Hall of Fame in September 2009, Time, Inc., publisher of Sports Illustrated, planned to release a special commemorative issue of Sports Illustrated Presents devoted exclusively to celebrating the athlete’s exemplary career.  Jewel submitted the ad, pictured below, congratulating Mr. Jordan.  The ad, which incorporates Jewel’s logo and slogan, reads: “Jewel-Osco salutes #23 on his many accomplishments as we honor a fellow Chicagoan who was “just around the corner” for so many years.”

Far from flattered, Jordan viewed the ad as a misappropriation of his identity for the supermarket’s commercial benefit and sued Jewel alleging violations of the Illinois Right of Publicity Act, among other state and federal trademark claims, seeking $5 million in damages. Jewel moved for summary judgment claiming that its advertisement was “non-commercial speech” and exempt from liability by the First Amendment of the Constitution.  Jordan cross-moved for partial summary judgment to determine whether Jewel’s ad was a “commercial use of his identity,” entitling it to no constitutional protections.  The district court ultimately sided with Jewel, holding that the ad constituted non-commercial speech, and Jordan appealed.

On appeal, the Seventh Circuit had to determine whether Jewel’s ad constituted “noncommercial or commercial speech,”. It looked at whether the considered speech “proposes a commercial transaction”  in reliance on a prior Supreme Court case Cleary v. Bolger . There, a pamphlet published by a prophylactics manufacturer was considered “commercial speech,” even though it contained a mix of general information and specific product details and did not expressly propose a commercial transaction.  Adapting factors used by the Bolger court, the Seventh Circuit looked at whether or not the commemorative ads could be considered advertising, whether they referred to specific commercial products, and whether they were distributed by the company for economic purposes.  The court found that the Jewel ad satisfied all three factors and permitted Jordan’s claim to proceed.

First the court found that the ad could be considered “image advertising,” a type of advertisement that promotes a company brand, not individual products.  Even though Jewel did congratulate Jordan on his induction to the Hall of Fame, the ad also served a commercial function of brand awareness. Not only did Jewel place its logo in the ad, the text also incorporated Jewel’s slogan “As we honor a fellow Chicagoan who was ‘just around the corner’ for so many year.”  It was clear to the court that Jewel was hoping to increase local patronage in placing this ad.

Second, the court also stated that the ad clearly “promotes patronage at Jewel-Osco stores more generally” and served an “economic purpose: to burnish the Jewel-Osco brand name and enhance consumer goodwill.” The court was influenced by the fact that the ad incorporated Jewel’s logo.

Lastly, the court addressed broader policy concerns inherent in allowing unauthorized uses such as Jewel’s to go unchecked.  Noting how ubiquitous image advertising has become in today’s market, the court stated that “classifying this kind of advertising as constitutionally immune noncommercial speech would permit advertisers to misappropriate the identity of athletes and other celebrities with impunity.”

Takeaway

This case may make brand owners and advertisers, pause before incorporating celebrity names in non-product specific “image advertising”, whether an ad, social media site or  in native advertising. While the court shied away from drawing too bright a line, limiting the holding to the particular content and context of Jewel’s ad and being careful to state that “nothing we say here is meant to suggest that a company cannot use its graphic logo or slogan in an otherwise noncommercial way without thereby transforming the communication into commercial speech”, caution must be taken when any commercial company uses a celebrity name. Further guidance on this issue may yet come from another pending lawsuit Jordan has filed against a rival supermarket chain that also advertised in the same commemorative issue (See Jordan v. Dominick’s Finer Foods, LLC, No. 1:10-cv-00407 (N.D. filed Jan. 20, 2010).  While we wait for the outcome, agencies and brand owners should carefully vet with their counsel any ads with celebrity association that might violate state right of publicity laws.