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
"The commercial-speech category is not limited to speech
that directly or indirectly proposes a commercial
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
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
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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