Jordan v. Jewel Food Stores, Inc.

An image advertisement congratulating Michael Jordan was commercial speech and not subject to constitutional protections.

Opinion (Sykes): In 2009, Michael Jordan (“Jordan”) was inducted into the Naismith Memorial Basketball Hall of Fame. In tandem with this achievement, Sports Illustrated magazine published a special issue featuring articles on Jordan’s career. Jewel Food Stores, Inc. (“Jewel”) was given a free advertisement in the special issue, and in return, the grocery chain stocked the special issue in its stores. Jewel’s full-page ad prominently featured the Jewel's name with accompanying text congratulating Jordan’s induction with a play on the store's slogan, all centered over basketball shoes with Jordan’s jersey number. Jordan filed a lawsuit alleging several causes of action, including claims that the advertisement used his trademark and his famous identity to promote the store without permission. Jewel countered that the advertisement was merely congratulatory, and thus protected non-commercial speech. The district court ruled in Jewel’s favor and held that the First Amendment protected the ad. On appeal the Seventh Circuit held that although the ad clearly congratulated Jordan, it was still commercial speech which promoted Jewel’s stores using Jordan’s accolades, which defeated Jewel's constitutional defense to trademark infringement.The court noted that if it had held that Jewel's advertisement was not commercial speech, the rights of trademark holders to protect their marks would be impaired with the rise of image advertising (which shows appealing images with a specific brand in order to build goodwill for the brand). The court noted that there is no clear consensus on how to resolve intellectual property rights when they intersect with first amendment rights. Finally, the court noted that their current ruling did not touch upon the merits of Jordan’s false-endorsement claim under the Lanham Act. REVERSED and REMANDED.