Michael Jordan v. Jewel Food Stores, Inc.

743 F.3d 509 (7th Cir. 2014)

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Nature of the Case

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Facts

On the occasion of P's induction into the Basketball Hall of Fame Sports Illustrated, produced a special commemorative issue devoted exclusively to P's sports career. D, who operated 175 Jewel-Osco supermarkets in and around Chicago was offered free advertising space in the issue in exchange for agreeing to stock the magazine in its stores. D accepted and submitted a full-page ad congratulating P on his induction into the Hall of Fame. The ad ran on the inside back cover. The ad combines textual, photographic, and graphic elements, and prominently includes the Jewel-Osco logo and the supermarket chain's marketing slogan, 'Good things are just around the corner.' The logo and slogan-both registered trademarks-are positioned in the middle of the page, above a photo of a pair of basketball shoes, each bearing Jordan's number '23.' The text of the ad reads as follows: 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. P was not amused. P sued D for $5 million alleging violations of the Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition. D maintains that its ad is 'noncommercial' speech and thus has full First Amendment protection. Jordan insists that the ad is garden-variety commercial speech, which gets reduced constitutional protection and may give rise to liability for the private wrongs he alleges in this case. If the ad is fully protected expression, P agrees with D that the First Amendment provides a complete defense and his claims cannot proceed. D moved for summary judgment raising the First Amendment as a defense and arguing that its ad qualified as 'noncommercial' speech. P claimed it was commercial speech and asked for summary judgment. The district court agreed with D that the ad was noncommercial speech. P appealed.