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A Jewel Food Stores Inc. ad congratulating Michael Jordan on being inducted into the Basketball Hall of Fame was commercial speech not protected by the First Amendment, an appeals court has ruled in allowing Mr. Jordan to pursue his lawsuit against the grocery store chain.
In September 2009, New York-based Time Inc., the publisher of Sports Illustrated, produced a special commemorative issue, Sports Illustrated Presents, devoted exclusively to the basketball star's career, most of it with the Chicago Bulls.
Melrose Park, Ill.-based Jewel was offered free advertising in the issue in exchange for stocking the magazine in its stores.
Its ad showed a pair of basketball shoes, each bearing Mr. Jordan's No. 23, and prominently displayed the Jewel-Osco logo and its marketing slogan, “Good things are just around the corner.”
The text of the ad congratulated Mr. Jordan on his induction to the Basketball Hall of Fame.
Mr. Jordan filed suit in state court, alleging trademark infringement under the U.S. Lanham Act and state laws. The case was subsequently moved to federal court in Chicago.
Jewel asserted blanket immunity under the First Amendment right of free speech. The district court agreed with Jewel, and Mr. Jordan appealed.
In its ruling Tuesday in Michael Jordan. v. Jewel Food Stores Inc. and SuperValu Inc., a three-judge panel of the 7th U.S. Circuit Court Appeals in Chicago ruled unanimously that the ad was commercial speech not protected by the First Amendment, allowing the former basketball star's trademark infringement suit against Jewel to proceed.
“Considered in context, and without the rose-colored glasses, Jewel's ad has an unmistakable commercial function: enhancing the Jewel-Osco brand in the minds of consumers. This commercial message simplicity but easily inferred, and is the dominant one,” the court ruled.
“We only recognize the obvious: that Jewel had something to gain by conspicuously joining the chorus of congratulations on the much-anticipated occasion of Jordan's induction into the Basketball Hall of Fame. Jewel's ad is commercial speech,” the court ruled.
“A contrary holding would have sweeping and troublesome implications for athletes, actors, celebrities and other trademark holders seeking to protect the use of their identities or marks,” the appeals court ruled in remanding the case for further proceedings.